Paramasiva Udayay vs Krishna Padayachi and Another

Seshagiri Ayyar, J.—In this case, the deed of mortgage sued on was attested by two witnesses and was signed by the scribe as the writer

thereof. One of the attesting witnesses is dead and the plaintiff has not taken steps to examine the other witness who is said to be still alive. He has,

however, examined the writer of the document who deposed that he saw it executed. The Courts below have held that this proof is not sufficient

and have dismissed the suit.

We are unable to agree with them. The fact that a person calls himself a scribe is not proof that he was not an attesting witness as well. It may

be that the writer left the place immediately after he had written the document and before it was signed by the executant. In such a case, he cannot

be regarded as an attesting witness. The essence of attestation is that the person must have seen the document executed. The question is one of

qualification but not of the use of any set phraseology. There is plenty of authority for the proposition that a scribe can also be an attesting witness.

Veerappudayan and Another Vs. Muthukarappan Thevan and Others, was relied on for the appellants. That decision lays down that the fact that a

scribe wrote the endorsement after the document was executed and attested was some evidence in favour of regarding him as an attesting witness.

This was followed by a Bench in which one of us sat in Ayyasami Iyengar v. Kylasam Pillai (1915) 26 I.C. 409. It would greatly depend upon the

facts of each case whether a scribe is also an attesting witness. As pointed out in Ranu v. Laxman Rao ILR (1909) 33 Bom. 44, the time and place

of the scribe''s endorsement may show that he did not witness the execution. Under such circumstances, to examine him as an attesting witness

may give room to perjured evidence being let in. As regards Badri Prasad v. Abdul Karim ILR (1913) All. 254, relied on by the learned vakil for

the respondent, there can be no doubt that the decision was right on the facts found. The scribe signed his memorandum before the document was

executed. If that decision lays down that under no circumstances can a scribe be an attesting witness, we are unable to agree with it. Mr. Justice

Chamier who was a party to this judgment took part in the decision reported in Ram Bahadur Singh v. Ajodhya Singh 20 C.W.N. 699, as Chief

Justice of the Patna High Court. In this case the learned Judge expresses himself more uncompromisingly than in the Allahabad judgment. Mr.

Justice Jwalaprasad while concurring with the Chief Justice on the facts of the case points out that a scribe is not necessarily debarred from being

an attestor. In Raj Narain Ghose v. Abdur Rahim 5 C.W.N. 454, the same view was taken of the position of a scribe. We do not think Shamu

Patter v. Abdul Kadir Ravuthan (1912) ILR 35 Mad. 607 (P.C.) is opposed to this view. In this country, less attention should be paid to the name

by which a person chooses to style himself than to the character he fills. It will be a question in each case, whether a scribe was intended to witness

the execution of a document. That is a matter for the trial Court. We must therefore hold that the apriori conclusion come to by the Courts below

that because a person had called himself a scribe, he was incapable of being regarded as an attesting witness is not a proposition which we can

accept.

We must therefore reverse the decrees of the Courts below and remand the case for trial to the Court of first instance in the light of the above

observations. Further evidence may be taken. Costs will abide the result.