Scribe Not An 'Attesting Witness' Under S.63 Succession Act; Propounder's Onus To Dispel Suspicious Circumstances Not Discharged: Supreme Court - 2025-07-12

Supreme Court Restores Trial Court Decree, Rules Unregistered Will Not Proven Due to Suspicious Circumstances

New Delhi: The Supreme Court, in a significant ruling on the law of succession, has set aside a High Court judgment, holding that an unregistered Will was not proven in accordance with the law due to glaring inconsistencies in witness testimonies and suspicious circumstances that the propounder failed to dispel.

A bench of Justice B.V. Nagarathna and Justice Nongmeikapam Kotiswar Singh restored a trial court's decree for partition, emphasizing the stringent proof required for a Will under Section 63 of the Indian Succession Act, 1925, and Section 68 of the Indian Evidence Act, 1872.

Case Background

The dispute originated from a partition suit filed by Chinu Rani Ghosh and others against their relatives, including Subhash Ghosh. The family property was divided into three schedules: 'A', 'B(i)', and 'B(ii)'. The core contention was over the 'B(i)' and 'B(ii)' properties, which belonged to Kanaki Bala Ghosh, who died childless in 2001.

The plaintiffs claimed a 1/6th share in all properties as legal heirs under the Hindu Succession Act. However, defendant No. 1, Subhash Ghosh, contested this claim, asserting that Kanaki Bala Ghosh had bequeathed the 'B' schedule properties to him through an unregistered Will dated May 15, 1995.

The Trial Court found that the Will had not been legally proven and granted the plaintiffs a 1/6th share in all properties. The High Court of Tripura reversed this, upholding the Will's validity and restricting the plaintiffs' share to only the 'A' schedule property. Aggrieved, the original plaintiff, Chinu Rani Ghosh, appealed to the Supreme Court.

Key Arguments

Appellant's Contention: Counsel for the appellant, Ms. Aditi Anil Dani, argued that the Will failed the legal test for proof. She pointed out that Section 63 (c) of the Succession Act mandates attestation by at least two witnesses. While the Will named three, only one attesting witness (DW-3) was examined. His testimony was vague and lacked crucial details about the presence of other witnesses during attestation. The propounder of the Will (DW-1) also failed to provide clear evidence on this point.

Respondent's Defence: Senior Counsel Shri Pijush K. Roy, for the respondent, contended that the Will was validly executed. He argued that the scribe of the Will (DW-2), who also signed the document, should be considered an attesting witness, thus fulfilling the legal requirement.

Supreme Court's Analysis and Ruling

The Supreme Court meticulously analyzed the evidence and legal provisions. The bench made several critical observations:

Scribe is Not an Attesting Witness

The Court drew a clear distinction between the role of a scribe and an attesting witness. It held: > "The object and purpose by which a Will is attested by a witness is quite distinct from the object and purpose by which a scribe would attest a Will... an attesting witness would attest a Will on the request made by the testator for the purpose of due execution... Therefore, in the instant case, the evidence of Shri Subajit Roy (DW-2) cannot be construed as that of an attesting witness."

Deficient and Unreliable Witness Testimonies

The Court found the evidence presented to prove the Will to be wholly unreliable. * The testimony of the sole attesting witness (DW-3) was deemed insufficient as he failed to mention who the other attesting witnesses were or if they were present. * The evidence of the propounder (DW-1) was "lacking in material particulars." * The scribe's (DW-2) testimony was found to "not inspire any confidence." The Court noted the scribe's admission that he did not know the testator personally and only began working as an advocate's clerk in 2009, fourteen years after the Will was allegedly executed in 1995. This cast serious doubt on his role in drafting the Will.

Heavy Onus on Propounder Amidst Suspicious Circumstances

Reiterating the celebrated principles from the landmark case of H. Venkatachala Iyengar vs. B.N. Thimmajamma , the bench stressed that the propounder of a Will has a heavy onus to remove all legitimate suspicions surrounding its execution. > "Unlike other documents the will speaks from the death of the testator... and this aspect naturally introduces an element of solemnity in the decision... if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence."

The Court concluded that the evidence was riddled with inconsistencies and failed to meet the legal standard.

Final Decision

Finding that the execution of the Will was "surrounded by suspicious circumstances which have not been erased by DW-1, the propounder of the Will," the Supreme Court held that the High Court was wrong to accept it as proven.

The bench allowed the appeal, setting aside the High Court's judgment and restoring the Trial Court's decision. Consequently, the plaintiffs were held to be entitled to their 1/6th share in both Schedule 'A' and 'B' properties.