Who is an ‘Attesting witness’? Can the scribe be an attesting witness? Give reasons.

Question: Who is an ‘Attesting witness’? Can the scribe be an attesting witness? Give reasons.

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Answer

To attest is ‘to bear witness to a fact’.

A document the execution of which s required by law to be “attested” means a document the signature upon which should be put in the presence of two witnesses who themselves add their signatures and addresses in proof of the fact that the document was signed or executed in their presence.

They are called ‘attesting witnesses’, Attestation does not imply that the attesting witnesses have admitted to the contents of a document.

Section 68 lays down that if a document is required by law to be attested produced as evidence, at least one attesting witness shall be called to rove the execution of the document. This principle will apply only if at least one of the attesting witnesses is alive, capable of giving evidence and subject to the process of the court.

Section 68 further provides that no attesting witness need be called in case of the document (not being a will), which has been registered under the Indian Registration Act, 1908, and the person executing it does not specifically deny its execution. If there is a denial, then, an attesting witness has to be called.

An attesting witness must either see the executant sign or he must receive from the executant an acknowledgement that the executant has signed the deed. Further, the attesting witness must sign the deed in the presence of the executant. An attesting witness is one who signs as a witness.

Scribe whether attesting witness

According to the Allahabad, the Patna and the Bombay High Courts, the scribe of a mortgage deed cannot be counted as an attesting witness merely because he has signed the deed, even though the deed may in fact have been executed in his presence, but the Madras and Calcutta, Orissa and Punjab and Haryana High Courts have held to the contrary.

A scribe of the deed does not come within the definition of attesting witness, Amardas v. Harman Bhai, AIR 1942 Bom. 291. The Bombay High Court has held in Yacubkhan v. Guljarkhan, (1927) 52 Bom 219 that where the writer has signed not as a scribe but as an attesting witness the attestation is good.

A scribe cannot be treated as attester of the document as was held by the Hon’ble SC in the case of N. Kamalam (dead) v. Ayya Swamy, AIR 2001 S.C. 2802.

The Rangoon High Court in case of Alagappa Chettiyar v. Ko Kala Pai, (1940) Ran 199 has held that the writer of a document may perform a dual role; he may be an attesting witness as well as the writer.

When a man places his signature upon a document and at the same time describes himself as the writer thereof, the inference is that he signs as the writer and nothing else, but, as a matter of fact, it can be shown that he signed not only as of the writer but also as a witness of the fact that he saw the document executed or received a personal acknowledgement from the executant that he had executed it.

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Important Mains Questions Series for Judiciary, APO & University Exams

1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
6. Law of Evidence Mains Questions Series Part-VI
7. Law of Evidence Mains Questions Series Part-VII
8. Law of Evidence Mains Questions Series Part-VIII
9. Law of Evidence Mains Questions Series Part-IX
10. Law of Evidence Mains Questions Series Part-X