Is it mandatory to examine scribe of will to prove its execution?

In view of the provisions of Section 68 of the Evidence Act,

 there is no need to examine the scribe of Will. What law

requires is examination of atleast on attesting witness.

30. In view of the aforesaid legal preposition there is no

need of examining scribe of the Will.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SECOND APPEAL NO. 222 of 1982

SONAJI RAGHALA CHAUDHARI Vs AKHA DIWALA CHAUDHARI 

CORAM:  DR. JUSTICE A. P. THAKER

Date : 02/07/2021

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Whether the execution of the Muslim will is proved if propounder of will fails to examine scribe of will?

 While a Mohammedan Will is required to be proved under Section 67 of the Evidence Act, 1872, a Will governed by the provisions contained in Part VI of the Indian Succession Act, 1925, is required to be proved as laid down under Section 68 of the Evidence Act, 1872. Therefore, the validity of the will in question Exhibit DW-2/A is required to be examined under the provisions of Section 67 of the Evidence Act.

10. Section 67 of the Evidence Act, reads as under:-

“67. Proof of signature and handwriting of person alleged to have

signed or written document produced.- If a document is alleged to be

signed or to have been written wholly or in part by any person, the

signature or the handwriting of so much of the document as is

alleged to be in that person’s handwriting must be proved to be in his

handwriting.”

11. Where the document is written by one person and signed

by another, the handwriting of the former and the signature of the later have both to be proved in view of Section 67 of the Evidence Act. What Section 67 of the Evidence Act refers to is the signature of a witness who counter signs a document as a person who was present at the time when the document was signed by another person. This was so held by the learned Division Bench of the Gujarat High Court in Miyana Hasan Abdulla and another vs. State of Gujarat AIR 1962 Gujarat 214 and I see no reason to take a different view.

12. In such circumstances, obviously no exception can be

taken to this part of the findings recorded by the learned first Appellate Court, whereby it drew an adverse inference against the appellants for not examining the scribe of the document Shri Shamshad Ahmed Qureshi, who was very much alive at that time and even, in case, he was suffering from ailment his statement could have conveniently been recorded on commission. The non-examination of the scribe assumes importance because the witness Lovender Singh DW-2 does not state to have witnessed Smt. Tulsa, the testator, putting her signatures over the Will.

Substantial questions of law are answered accordingly.

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No. 623 of 2008 a/w

RSA No. 624 of 2008

Date of decision: 20.4.2021

RSA No. 623 of 2008

Ashiq Ali (deceased) through his LRs  Vs  Yasin Mistri (deceased) through his LRs 

Coram

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Date of decision: 20.4.2021

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Whether party can examine scribe in place of attesting witness to prove execution of document?

In Abinash

Chandra Bidvanidhi Bhattacharya v. Dasarath Malo [ILR

56 Cal 598] it was held that a person who had put his

name under the word “scribe” was not an attesting

witness as he had put his signature only for the purpose

of authenticating that he was a “scribe”. In Shiam

Sunder Singh v. Jagannath Singh [54 MLJ 43] , the Privy

Council held that the legatees who had put their

signatures on the will in token of their consent to its

execution were not attesting witnesses and were not

disqualified from taking as legatees.”

25. In the aforesaid case, it had been held that the person who put his

name under the word “scribe” was not an attesting witness, further

that the legatees who had put their signatures on the Will were not

attesting witnesses. 

26. Mr. Swarup relied on judgment reported as N. Kamalam (Dead) &

Anr. v. Ayyasamy & Anr.12 that in the absence of Maha Singh

deposing that he is the attesting witness along with Azad Singh, his

statement cannot be treated to be that of attesting witness. We do

not find any merit in the said argument. In the aforesaid case, it

was the scribe who was said to be the attesting witness. This Court

held as under:

“27. …The animus to attest, thus, is not available, so far

as the scribe is concerned: he is not a witness to the will

but a mere writer of the will. The statutory requirement

as noticed above cannot thus be transposed in favour of

the writer, rather goes against the propounder since both

the witnesses are named therein with detailed address

and no attempt has been made to bring them or to

produce them before the court so as to satisfy the

judicial conscience. Presence of scribe and his signature

appearing on the document does not by itself be taken to

be the proof of due attestation unless the situation is so

expressed in the document itself — this is again,

however, not the situation existing presently in the

matter under consideration.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1960 OF 2020

DHANPAT Vs  SHEO RAM 

Dated:MARCH 19, 2020.

HEMANT GUPTA, J.

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Whether a witness can be confronted in cross examination by showing document of which he is neither signatory not scribe?

Order 7 Rule 14(3), Order 8 Rule 1A(4) and Order 13 Rule 1(3) all provide that the rule for filing a document alongwith pleadings and/or before the settlement of issues does not apply to documents with which a witness may be confronted in his cross examination. The question which arises is as to with what documents a witness can be confronted; whether with those mentioned in Sections 144 and 145 of the Evidence Act only or with others also. In the opinion of this court, no limitation can be placed on the documents which can be confronted to the witness. The present case itself gives a classic illustration in this regard. The witness is an architect who claims to have inspected the property and reported that the tenants have carried out unauthorized changes in the property and which changes have lowered the value, utility or security of the building. The endeavour of the cross examining party would be to falsify the said report. The same can be done by showing to the said witness the photographs or other material which would run contrary to the testimony or report of the said witness. Such material would not necessarily be one to which the witness would be a signatory or a scribe. 

IN THE HIGH COURT OF DELHI

C.M.(M) Nos. 692, 702, 9953 and 10057/2009

Decided On: 30.11.2009

 Surinder Kumar Bajaj  Vs.  Sheela Rani Pasricha

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

Citation: 2009 SCC Online Del 3855

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Whether Account books can be proved without examining scribe?

Mr.Ghaisas was cross-examined by the respondent-Union on the contents of the Balance- sheets and Auditor's report and the statements made thereunder. This trend of cross-examination, ultimately, resulted in proving those documents. The law in this behalf is well settled. In the case of Ram Janki Devi v. Juggilal Kalamapat MANU/SC/0533/1971 : [1971]3SCR573 , the contention that in absence of scribe, the account books were not proved -was held unacceptable. One of the reasons was that the account books were shown to the witness in the cross-examination and questions were asked on the same. The Supreme Court treated those account books as proved. Similar is the situation in case at hand vis-a-vis balance sheets, profit and loss accounts, and other financial statements are concerned. Each of them were shown and used in the cross-examination by the Union. It is, thus, not open to the respondent-Union to complain lack of proof of those documents. All those documents were rightly read by the Industrial Tribunal in evidence.

IN THE HIGH COURT OF BOMBAY

Appeal Nos. 364 and 441 of 2005 in Writ Petition No. 1097 of 2004

Decided On: 11.06.2007

Hindoostan Spg. and Wvg. Mills Ltd. Vs.  Hindustan Crown Mills Siddhivinayak Kamgar Karmachari Sangharsha Sanghatana 

Hon'ble Judges/Coram:

Dr. S. Radhakrishnan and V.C. Daga, JJ.

Citation: 2007 (4) ALLMR 376

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Whether court can rely on dying declaration which does not bear endorsement of scribe?

 The   Dying   Declaration,   which   is   treated   as   First
Information Report is scribed by Purushottam Waghmare (PW 7).
He   gave   request   letter   to   doctor   at   Government   Hospital,
Bhandara   to  examine   the   patient   and   to   give   certificate   as   to
whether she is in a fit condition.     The said letter is at Exh.41.
According to Scribe Purushottam Waghmare, doctor has examined
and put his endorsement on Exh.41 itself that “fit for statement”.
However, the doctor who has examined patient Kavita and who
has   given   aforesaid   endorsement   is   not   examined   by   the

prosecution.
Even   during   the   substantive   evidence,   Purushottam
Waghmare did not state that he himself was satisfied about the
fitness of Kavita.     It is not necessary that for recording Dying
Declaration by the Scribe there should be a Medical Certificate.
However, in such case the person who takes down the statement
of the declarent must himself be satisfied that the patient is in a
condition to  give his or her  statement.     In the  present  case,
neither   Exh.42   shows   the   endorsement   by   Purushottam
Waghmare, a Scribe, that he himself was satisfied about the fitness
of   Kavita   regarding   giving   her   statement   nor   during   his
substantive evidence he has stated so.   In that view of the matter,
the Court cannot rely  on the said Dying Declaration since there is
nothing available on record about the fact that the Kavita was in a
fit condition to give her statement.
The perusal of the Dying Declaration shows that the said
Dying Declaration is absent in respect of the endorsement made by
the Scribe that after recording the Dying Declaration it was read

over   to   the   declarent/Kavita   and   she   admits   it   to   be   true.
Therefore, the said Dying Declaration cannot be relied upon and
cannot be made basis for conviction of the accused persons in view
of the authoritative pronouncement of the Hon'ble Apex Court in
the case of Shaikh Bakshu ..vs.. State of Maharashtra, cited supra.
The said view is also followed by various judgments of this Court
and also in the reported case of   Vilas @ Bandu Punjabrao Misal,
cited supra.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.411 OF 2014.
    Narendra Ramdas Meshram,
     V
     State of Maharashtra,

     CORAM:      B.R.GAVAI AND 
                      V.M.DESHPANDE, JJ.
                                   DATE:     12th JULY, 2016.
Citation: 2017 CRLJ(NOC) 12 Bom

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Whether experience of scribe is relevant to decide legality of agreement of sale?

Learned counsel for the defendant has submitted that there have been 
admissions given by P.W.3 Bhagwan that prior to the suit transaction he had not 
written any Isar Pawati, but, with due respect, I must say that only because the 
scribe had not prepared or scribed any similar document in the past,  it would not by 
itself create a doubt about the role played by him as a scribe in the instant case.  It 
has been the case of the plaintiff that the contents of the document at Ex.32 were 
written on the say of the defendant and this fact is also admitted by the defendant. 
So, in the instant matter, experience of the scribe was of no relevance and what 
P.W.3 Bhagwan has done was only to put into writing what was told to him by the defendant himself.   Therefore, the said admission would not lead to creating any 
doubt about the contents of the agreement to sell vide Ex.32.  I must say it  here that 
the signature appearing on this document has not been denied by the defendant. 

Therefore, I find no merit in the said argument of learned counsel for defendant.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL No. 342  OF 1989
Chintaman Sitaram Bajad (DEAD)   
   VERSUS
Shankar Sonaji Shingne   

CORAM :   
 S.B. SHUKRE, J.
             DATE :     JANUARY 07, 2014.

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Whether non examination of scribe of written report is fatal to prosecution case?

Per-contra learned A.G.A. while placing reliance upon AIR 2002 Supreme Court 1965 (Krishna Mochi and others. vs. State of Bihar) has submitted that non examination of the informant does not in any manner effect the prosecution case. Thus, we conclude that the non examination of the scribe of the written report namely Kalloo Ram is not fatal for the prosecution case. 
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH 


Case :- CRIMINAL APPEAL No. - 407 of 1982 
Ram Raj V State Of U.P. 

Corum:- Hon'ble Arvind Kumar Tripathi,J. 
Hon'ble Mrs. Ranjana Pandya,J. 
Citation: 2016 CRLJ(NOC)326 ALL

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Whether sale deed can be proved in court even though scribe and attesting witnesses are not examined?

In the present case, as discussed above, even though the
scribe and attesting witnesses were not examined, there were other
evidence to show that the said document Ext.2 was executed. Therefore,
mere non-examination of the scribe and attesting witness would not
render the said document, Ext.2 to not have been proved in view of the
fact that there are other evidence on record to prove its execution.
IN THE GAUHATI HIGH COURT

PRINCIPAL SEAT
RSA NO.42 OF 2002

Smt. Jina Gohain Vs Shri Puspadhar Baruah,

BEFORE
THE HON’BLE MR.JUSTICE N.KOTISWAR SINGH
Date of judgment;
24.7.2012

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