Advocate's Clerk Can Be A Valid Attesting Witness To Will: Gujarat High Court

The Gujarat High Court has held that the mere fact that an attesting witness to a Will is employed as a clerk with an advocate appearing in the matter cannot, by itself, render the witness unreliable or the Will suspicious, particularly when such witness has been examined by the very party seeking to challenge the Will. Justice J.C. Doshi was hearing an appeal filed by Mahesh Natubhai Gamit and others against respondents-defendants Chhaganbhai Reshiabhai, through his heirs and legal representatives, arising out of a family dispute concerning the validity of a registered Will and a claim for partition.The dispute related to agricultural lands which, according to the appellants were ancestral properties. Appellants-plaintiffs had before the trial court challenged a Will executed in 1986 by their predecessor, Reshiabhai, in favour of certain family members, contending that the properties were co-parcenary in nature and that Reshiabhai had no authority to dispose of them by a Will.The trial court had partly accepted the claim and declared the Will to be invalid while recognising 1/3rd share in favour of the appellants. However, the first appellate court reversed those findings and dismissed the suit in its entirety. Against this the appellants moved the High Court.The high court said:"One of the attesting witnesses, Ranchhodbhai, was examined by the plaintiff (appellant) himself at Exh. 67. The learned Trial Court discarded his testimony solely on the ground that he was serving as a clerk with the advocate representing the defendants. The learned Appellate Court, however, rightly found such reasoning to be wholly untenable. Merely because a witness is employed as a clerk by an advocate appearing in the matter cannot, in vacuo, render his testimony suspect or inadmissible, particularly when he has been examined by the plaintiff to assail the Will. In his cross-examination, he categorically admitted that Reshiabhai had executed the Will while being in a sound and disposing state of mind and that the execution and registration were carried out in his presence. He further admitted that, at the time of registration, even the learned Advocate for the plaintiff was present. These admissions indubitably lend assurance to the due execution of the testamentary instrument".Appearing for the appellants advocate Nirav R. Mishra submitted that the lands were inherited from the common ancestor and retained its ancestral character, relying upon revenue entries in which the lands were described as “ancestral”. He further argued that the Will could not be treated as validly proved, as one of the attesting witnesses was working as a clerk with an advocate connected to the proceedings. According to him, this circumstance created a serious doubt about the independence and credibility of the witness.Appearing for the respondents Advocate Zubin F. Bharda argued that the appellants had failed to establish any coparcenary or joint family character of the properties and that the documentary record clearly indicated that the lands were held independently by the predecessors in title. On the question of the Will, he submitted that the Will was a registered document and that the statutory requirements for proof had been duly complied with by examining an attesting witness.At the outset, the Court noted that its jurisdiction in a second appeal is confined to substantial questions of law and that findings of fact recorded by the first appellate court could not be re-appreciated merely because another view was possible.On whether the lands were ancestral, Justice Doshi observed that a mere description of property as “ancestral” in a revenue entry does not, by itself, establish coparcenary character, particularly in the absence of antecedent records showing inheritance in the line asserted by the plaintiffs. Given that revenue entries are primarily maintained for fiscal purposes and do not confer title, the Court held that the plaintiffs had failed to prove that the suit properties were ancestral.On the challenge to the Will, the Court noted that the Will was registered and the deposition of the two witnesses showed that the testator had signed the Will in their presence. In view of the findings that the appellants had failed to establish that the suit properties were ancestral and that the Will was validly executed and proved, the Court held that appeal was devoid of substance, bereft of any sustainable ground warranting interference within the limited scope of Section 100 CPC.Accordingly, the High Court dismissed the second appeal and affirmed the judgment of the first appellate court.Case title: Mahesh Natubhai Gamit & Ors. V. Chhaganbhai Reshiabhai Through Heirs And L.R. & Ors.Case no.: R/SECOND APPEAL NO. 67 of 2005Counsel for Appellants: Advocates Nirav R Mishra, RK Mishra Counsel for respondents: Advocate Zubin F Bharda Click Here To Read/Download Order

Advocate's Clerk Can Be A Valid Attesting Witness To Will: Gujarat High Court

Ananya Tangri

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