Scribe's Testimony Sufficient to Prove Will Under S.69 Evidence Act When Attestors Dead; Stock Witnesses Don't Invalidate: Kerala High Court - 2025-05-29

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Kerala High Court Upholds Will Based on Scribe 's Testimony, Clarifies Proof Under Section 69 Evidence Act

Ernakulam, Kerala – The Kerala High Court, in a significant judgment, has affirmed the validity of a Will, holding that the testimony of the scribe, coupled with other evidence, is sufficient to prove its due execution under Section 69 of the Indian Evidence Act when the attesting witnesses are deceased. The bench, comprising Justice Sathish Ninan and Justice P. Krishna Kumar , dismissed an appeal challenging a trial court's decision that had upheld the Will in a family property dispute.

The court reiterated that while the propounder of a Will must dispel suspicious circumstances, the mere fact that attesting witnesses were "stock witnesses" or that natural heirs were excluded does not automatically invalidate a duly executed and registered Will.

Case Background: A Family Dispute Over Inheritance

The appeal (RFA No. 715 of 2013) was filed by Dr. K.R. Leela Devi against her brother, K.R. Rajaram (whose legal heirs were later impleaded), and other siblings/heirs of deceased siblings. The dispute centered on a suit for partition of properties. The primary contention arose over a residential building and appurtenant land (plaint B schedule property), which the first defendant, K.R. Rajaram , claimed was bequeathed to him by their mother, Smt. P. Bhavani , through a Will dated April 6, 1988 (Ext.B2).

The trial court had decreed the suit in part, excluding the residential plot from partition, accepting the validity of the Will. The appellant challenged this, questioning the genuineness and legal validity of the Will.

Arguments Presented

Appellant's Contentions (Dr. K.R. Leela Devi and 2nd Defendant):

* Lack of Testamentary Capacity: Argued that the mother, Smt. P. Bhavani , lacked the physical and mental capacity to execute the Will in 1988 due to age-related illnesses, a stroke in 1986, and macular degeneration.

* Coercion and Undue Influence: Alleged the Will was a result of coercion and undue influence by the first defendant.

* Improper Attestation & Proof:

* Attesting witnesses were not examined as required by Section 63(c) of the Indian Succession Act and Section 68 of the Indian Evidence Act.

* The attestors were "stock witnesses," casting doubt on the execution.

* The scribe (DW5) lacked animo attestandi (intention to attest).

* No proper proof that attesting witnesses were deceased or that procedures under Order XVI Rule 10 CPC were followed.

* Suspicious Circumstances: Failure to mention other legal heirs or reasons for their exclusion.

Respondent's Defence ( K.R. Rajaram 's Legal Heirs):

* Valid Execution: Maintained Smt. Bhavani executed the Will (Ext.B2) in a sound disposing state of mind, and it was duly registered.

* Knowledge and Delay: Argued the appellant knew of the Will, evidenced by property mutation and an eviction suit where the Will was produced, yet filed the partition suit 21 years after Bhavani 's death.

* Proof under Section 69: Stated that the attesting witnesses were deceased, and the Will was proven through the scribe's (DW5) testimony, satisfying Section 69 of the Evidence Act.

* No Suspicious Circumstances: The first defendant was not involved in the Will's execution. The registration of the Will supported its genuineness. The fact that witnesses were "stock witnesses" doesn't inherently cast doubt.

Legal Principles and Court's Reasoning

The High Court meticulously examined the evidence and legal provisions, focusing on the proof of the Will.

On Proof of Will when Attesting Witnesses are Deceased (Section 69, Indian Evidence Act): The court emphasized the distinction between Section 68 and Section 69 of the Indian Evidence Act.

* Section 68: Requires calling at least one attesting witness if alive and available.

* Section 69: Applies when no attesting witness can be found (e.g., deceased). It requires proof that the attestation of at least one attesting witness and the signature of the executor are in their respective handwritings.

The court found that the testimony of DW3 (first defendant's son) and DW5 (scribe) established that the attesting witnesses were deceased, thereby invoking Section 69. The judgment stated: > "Reading Sections 68 and 69 of the Evidence Act together, it is clear that if the propounder succeeds in proving that the attesting witnesses are dead, the Will can be proved by establishing that the signature of the executant and the attestation by at least one witness are in their respective handwritings."

The court relied on the scribe's (DW5) testimony, who stated he prepared the Will on Bhavani 's instructions, she read and approved it, signed it in his presence and that of the attesting witnesses, who also signed in her presence. DW5 also identified the signatures. The court found DW5 to be a reliable witness: > "His testimony, confirming the signatures of Bhavani and attesting witnesses on Ext. B2 Will remained solid, even after a rigorous cross-examination. The trial court found his evidence reliable and that he is a trustworthy witness... This is sufficient to prove the due execution of the Will."

The court distinguished the Supreme Court's ruling in Babu Singh and others v. Ram Sahai alias Ram Singh , clarifying that it did not mandate issuing summons to attestors as a prerequisite to concluding they are dead if other credible evidence of their demise exists.

On Scribe 's Animo Attestandi and "Stock Witnesses": The court held that since DW5 (scribe) was not examined as an attesting witness under Section 68, the question of his animo attestandi was irrelevant. Regarding "stock witnesses," the court, citing V.Kalaivani v. M.R.Elangovan , observed: > "...the fact that a Will is attested by such witnesses—when the act of signing is a verifiable physical act—does not, by itself, affect the validity of the attestation."

On Testatrix's Disposing State of Mind: Despite allegations of Smt. Bhavani 's ill-health, the court found a "total lack of evidence to substantiate the same." PW1 (plaintiff) and DW2 (wife of 2nd defendant), despite being medical professionals, failed to produce medical records. Photographic evidence (Ext.B19 to B21) from September 1988 showed Bhavani in apparent good health. The court concluded: > "After going through the entire evidence, we find no reason to doubt the soundness of mind and the disposing capacity of the testatrix at the time of execution of Ext. B2 Will."

On Suspicious Circumstances: The court, referencing H.Venkatachala Iyengar v. B.N.Thimmajamma , found no suspicious circumstances like doubt about the testator's mental condition, unnatural disposition, or the propounder taking a prominent role in execution. Smt. Bhavani was not residing with the first defendant (propounder) at the time of execution. The court noted: > "The mere fact that natural heirs have been excluded, by itself, cannot be treated as a suspicious circumstance, especially where the bequest is made in favour of an offspring." ( citing Ramabai Padmakar Patil v. Rukminibai Vishnu Vekhande )

The court also found merit in the defendant's argument that the plaintiff's prior actions (Power of Attorney for other properties, knowledge of mutation, and eviction suit involving the Will) supported the Will's genuineness and highlighted the delay in challenging it.

Final Decision and Implications

The High Court concluded that the first defendant had successfully proved the due execution and registration of the Will (Ext.B2). The evidence satisfied the court's conscience that the Will was genuine and executed by Smt. P. Bhavani in a sound disposing state of mind.

> "What emerges from the above discussion is that the first defendant has successfully proved the due execution and registration of the Will. The evidence on record, along with the circumstances arising therefrom, compels us to conclude that Ext. B2 Will is genuine, and that it was duly executed by the late Bhavani ."

The appeal was dismissed, affirming the trial court's judgment. This ruling underscores the practical application of Section 69 of the Indian Evidence Act in proving Wills where attesting witnesses are unavailable and clarifies that common challenges like "stock witnesses" or exclusion of some heirs do not, per se, negate a Will if its execution is otherwise satisfactorily proven.