GOPINATHAN NAIR Vs. MADHAVI AMMA NIRMALA BAI

JUDGEMENT

(1.) A suit for declaration of title and injunction ended in a decree in the trial court, but it was reversed in appeal and the suit was dismissed. Aggrieved by the said divergent finding rendered by the First Appellate Court, the plaintiff came up with this appeal.

(2.) The subject matter of the suit is pertaining to Ext.A3 Will alleged to have been left out by the deceased father on 13.09.1995. The propounder - plaintiff had given oral evidence as PW1 and the scribe was examined as PW2. The dispute centers around execution of Ext.A3 Will and the non-compliance of requirement under Section 63 of Indian Succession Act on the ground that there is only one attesting witness to the Will apart from the scribe. The trial court found that there is no prohibition for the scribe to act as an attesting witness and found that the scribe affixed his signature as an attesting witness to the Will - Ext.A3 and decreed the suit. But in appeal, the appellate court found that the examination of scribe will not discharge the burden lies on the propounder to prove the due execution of Ext.A3 and consequently the decree of the trial court was reversed and the suit was dismissed.

(3.) In Ext.A3 Will, there is only one attesting witness apart from the scribe. The learned counsel for the appellant relying on a Division Bench decision of this court rendered in George v. Elizabeth,1999 KHC 271 submitted that a scribe can also be an attestor though he was not labeled as an attesting witness in the document. A mere perusal of Ext.A3 would show that there is no indication that the scribe affixed his signature as one of the attesting witnesses. But his signature is seen affixed only as a scribe to the document. After the signature of the testator towards the last portion of the Will, one witness subscribed his signature in the capacity as an attesting witness. Thereafter the name and address of the scribe with his signature written in the capacity as scribe to the document. The witnesses were not numbered serially because there was only one attesting witness to the Will, apart from the scribe. It is specified in the Will itself that the scribe subscribed his signature as the scribe to the document by stating that "ezhuthiya" which stands for "written by". In short, there is nothing in Ext.A3 to show that the scribe had affixed his signature both in the capacity as a scribe and as an attesting witness.