role of scribe in Will deed
rajashekhar
(Querist) 10 March 2019
This query is : Resolved
dear sir for proof of will deed 2 attestors are examined and scribe was examined. one attestor is in favour of plantiff and other attestor is in favour of defendent and scribe is in favour of plantiff. but first attestor has signed in telugu language and first attestor only made sign of second attestor by making forgery in English.now second attestor came in favour of defendent and given evidence that his sign is forged .what is the value of evidence of scribe. when conflicting evidence is given by two attestors in contradiction .what is importantance attached to scribe evidence who has come on behalf of plantiff who is really lieing . how to discard scribe evidence in arguments .any case law or book on law of wills
rajashekhar
(Querist) 10 March 2019
Please answer experts
rajashekhar
(Querist) 10 March 2019
Please answer experts
P. Venu
(Expert) 10 March 2019
The facts, as posted lacks, clarity. Please provide simple facts and kindly avoid adjectives or subjective opinions.
Adv Shailendra Deshpande
(Expert) 10 March 2019
Is forgery of first attesting proved in Court? If yes, then ultimately Court won't rely on that attestor.
kavksatyanarayana
(Expert) 10 March 2019
Yes. Is the attestation of forgery proved? Your query requires facts.
rajashekhar
(Querist) 10 March 2019
dear experts there are 4 attestors on will deed apart from scribe.but first attestor was examined on behalf of plantiff and scribe also examined on behalf of plantiff but second attestor has been examined in favour of defendents so there is conflicting evidence between first and second attestor and first attestor has forged signature of second attestor in will deed .second attestor has given evidence that he has not made sign on will deed. when there is conflicting evidence what is the impact of these evidences in proof of will deed
rajashekhar
(Querist) 10 March 2019
we are planning for applying forensic expert opinion shortly
rajashekhar
(Querist) 10 March 2019
Please answer experts sir
KISHAN DUTT KALASKAR
(Expert) 15 March 2019
Dear Sir,
It all goes on principle of burden of proof as defined under the provisions of Evidence Act. Please see the following.
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Section 61 in The Indian Succession Act, 1925
61 Will obtained by fraud, coercion or importunity. —A Will or any part of a Will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void. Illustrations
(i) A, falsely and knowingly, represents to the testator, that the testator's only child is dead, or that he has done some undutiful act and thereby induces the testator to make a will in his, A's favour; such Will has been obtained by fraud, and is invalid.
(ii) A, by fraud and deception, prevails upon the testator to bequeath a legacy to him. The bequest is void.
(iii) A, being a prisoner by lawful authority, makes his Will. The Will is not invalid by reason of the imprisonment.
(iv) A, threatens to shoot B, or to burn his house or to cause him to be arrested on a criminal charge, unless he makes a bequest in favour of C. B, in consequence, makes a bequest in favour of C. The bequest is void, the making of it having been caused by coercion.
(v) A, being of sufficient intellect, if undisturbed by the influence of others, to make a Will yet being so much under the control of B that he is not a free agent, makes a Will dictated by B. It appears that he would not have executed the Will but for fear of B. The Will is invalid.
Section 63 in The Indian Succession Act, 1925
63 Execution of unprivileged Wills. —Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 12 [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:—
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
Section 68 in The Indian Evidence Act, 1872
68. 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: 1[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]
Suspicious circumstances-
As mentioned above that in proof of execution of will, a very heavy burden lies on the propounder to prove the due execution of will and to remove any suspicious circumstances surrounding the execution of particular will in question. Over the period of time judicial pronouncements provide a detail list of these suspicious circumsnatcs, not exhaustive though. These suspicious circumstances are:
i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
ii. The condition of the testator's mind may be very feeble and debilitated at the relevant time.
iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
iv. The dispositions may not appear to be the result of the testator's free will and mind.
v. The propounder takes a prominent part in the execution of the Will.
vi. The testator used to sign blank papers.
vii. The Will did not see the light of the day for long.
viii. Incorrect recitals of essential facts.
Other infirmities-
Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. In such circumstances “the test of the satisfaction of judicial conscience” becomes essential. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence.
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