No Need To Examine Scribe To Prove Execution of a Will: Gujarat High Court

What law requires is examination of at least one attesting witness, added the Court.

Section 68 of the Act of 1872 reads as follows:

Proof of execution of document required by law to be attested.—If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence…

Justice AP Thaker made this observation while hearing a property dispute suit wherein the will and its execution was under the microscope.

Being aggrieved and dissatisfied with the judgment and decree of the Appellate Court, Surat the original defendant had preferred the instant Second Appeal under Section 100 of CPC.

The respondent had filed a Suit against the present appellant for partition of property alleging that the properties were of joint family and thus he was ought to be given possession of his half in the suit property.

The trial Court had dismissed the suit of the respondent against which the he had filed First Appeal No. 33/1981, wherein the First Appellate Court had allowed the same.

The first appellate Court had interfered with the decision of the trial Court regarding the execution of the Will by the deceased on the following grounds:

1.There is no description of the properties in the Will.
2.There is recital in the Will that the deceased has only one son, whereas he had two sons.
3.There is discrepancy of the oral evidence of the important witnesses of the defendant regarding the colour of the thumb impression i.e. blue or black of the deceased.
4. There is contradictory version of the defendant witness regarding purchase of the stamp.
5. There is contradictory evidence of the defendant's witness as to whether the drafting of the Will was done while they were sitting either on the Otta of the house of the scribe or in the interior room of the scribe namely Gemalsinh.
6.Non-examination of the scribe i.e. Gemalsinh of the Will.
7.That the deceased was suffering from Paralysis and he was not in a position to execute Will as he was ill before the time of his death.
8. The registration of the Will after the death of the deceased.

It was is crystal clear, held the Court, that the suit properties were self-acquired properties of the deceased Diwala Gausa, who was the executor of the Will.

As regards the capacity to execute or make a Will as well as construction of Will, the Court relied on the provisions contained in Section 59 and 82 of the Indian Succession Act, 1925.

"In view of the aforesaid provision, even a person who are deaf or dumb or blind can make a Will if they are able to do what they do by it. Not only that, even a person who is insane may make a Will during interval if he is of sound mind. Therefore, under Section 59, only rider for non-capability of making Will is of being minor who is prohibited to dispose of his property by Will. Except minor, as provided in explanation under Section 59, other persons, as referred to above, can execute Will."

The appellate Court' reliance on the fact that the scribe of the Will was not examined by the defendant was not found to be in consonance with the legal requirement for the proof of the Will.

The first Appellate Courts' observation that the testator in his Will had mentioned that he has only one son, to doubt the genuineness of the Will was found to be incorrect.

On this ground, the Court said that it was well settled principles of law that while interpreting the Will, the entire Will has to be read and construed. There cannot be reading of the Will piece-meal, said the Court.

On reading of the Will, it was found that there was clear averment that the deceased has other son namely Akho, who residing with his father-in-law and has left his father and had never taken care of him.

Thus it was natural for the deceased Diwala Gause to exclude his own son from getting any share in the self-acquired properties.

The discrepancy regarding the colour of the ink used for thumb impression of the testator and witnesses thereof, was also found to have no relevance as on perusal of the Will along with the statement recorded therein by the Sub-Registrar, Mandvi it was noted that there were some thumb impressions that were black.

On a perusal of the entire evidence on record, it clearly appeared that all the legal requirements of proving the Will were satisfied and the factum of excluding the plaintiff Akha from the properties by the testator was reflected in the Will itself,

The High Court thus found that the trial Court has correctly held that the Will was executed in the sound state of mind by the deceased and the First Appellate Court had committed serious error of facts and law in passing a decree in favour of plaintiff for 1/2 share in the suit properties.

Accordingly, the present Appeal was allowed and the Judgment and decree passed by the First Appellate Court, Surat i.e. Assistant Judge, Surat was quashed and set-aside.