Punjab and Haryana High Court: Will has to be proved by attesting witnesses, not scribe

Tribune News Service

Saurabh Malik

Chandigarh, March 2

A will has to be proved by the attesting witnesses and not by the scribe or the draftsman. Merely because the scribe did not ask for the testator’s identity, it can’t be held that the will’s execution was not proven, the Punjab and Haryana High Court ruled.

Justice Sudhir Mittal also made it clear that expert examination of the signature was not necessary as the same could be done through the naked eye. The Bench ruled that the non-production of the will for several years after the testator’s death, too, did not give rise to any suspicion.

The ruling came in a case where one of the parties submitted that the scribe had admitted in his cross-examination that he did not see the testator’s identity proof. As such, it could not be said who the testator was. It was also argued that testator’s signatures had not been proved by examination of an expert witness.

The Bench was further told that the will remained in one of the attesting witnesses’ custody for seven years. As such, the trial court was justified in holding that the will was surrounded by suspicious circumstances. But the first appellate court accepted the appeal and held that the will dated January 7, 2011, was a genuine and valid document.

Justice Mittal asserted the witness was none other than a maternal uncle of the parties and the will was produced from his custody. He was also one of the attesting witnesses. The signature was compared by the appellate court with the testator’s admitted signature before it returned a finding of fact that the same matched.

Justice Mittal observed the witness-maternal uncle also stepped into the witness box to prove the will. “Just because the will was produced by the witness after seven years of the testator’s death does not give rise to any suspicion.”

Justice Mittal added the only argument that could be raised was that the document was forged, based on its late production. Forgery was not established. For the purpose, examination of an expert was not necessary as signatures could always be compared through the naked eye. “There is no error in the judgment of the first appellate court. The will has been proved in accordance with law and was bound to be accepted, Justice Mittal concluded.

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