Scribe Can Also Be an Attesting Witness if Animus Attestandi Is Proved; Intestate Succession Cannot Override a Valid Will: Punjab and Haryana High Court

Case Name: Amarjit Kaur and Others v. Harbhajan Kaur alias Bhajan Kaur through Her Legal Representative

Date of Judgment: 15 July 2026

Citation: RSA-2338-2026

Bench: Hon’ble Mr Justice Vikas Suri

Held: The Punjab and Haryana High Court held that there is no legal prohibition against the scribe of a Will also acting as its attesting witness. What is essential is proof of animus attestandi—the conscious intention to attest the document as a witness to its execution.

Merely signing a Will as its scribe does not automatically make a person an attesting witness. However, where the person signs in both capacities, witnesses the execution and enters the witness box to establish that the signature was affixed with an intention to attest, the statutory requirements of Section 63(c) of the Indian Succession Act, 1925, may be satisfied.

The Court further held that Sections 15 and 16 of the Hindu Succession Act, 1956, govern the devolution of a female Hindu’s property only when she dies intestate. Where a female Hindu executes a valid and duly proved Will, succession is testamentary and is governed by Section 30 of the Hindu Succession Act, read with the Indian Succession Act.

A registered Will proved through an attesting witness cannot be displaced by invoking the general rules of intestate succession. The Court also reiterated that an agreement to sell does not, by itself, create or transfer title in immovable property.

Summary: The defendant-appellants challenged concurrent judgments of the Civil Judge (Junior Division), Ludhiana, and the Additional District Judge, Ludhiana, decreeing a suit for possession and permanent injunction in favour of Harbhajan Kaur alias Bhajan Kaur.

The dispute concerned a double-storeyed house constructed over 79 square yards in Janta Colony, Basti Jodhewal, Ludhiana. Harbhajan Kaur, an issueless widow, claimed ownership and possession of the property. Defendant No. 1, Amarjit Kaur, was her sister; defendant No. 2 was Amarjit Kaur’s husband; and defendant Nos. 3 and 4 were their children.

According to Harbhajan Kaur, Amarjit Kaur had initially procured a Will in her favour by misguiding and misrepresenting her. After discovering Amarjit Kaur’s allegedly dishonest intentions, Harbhajan Kaur revoked that Will through a registered revocation deed dated 15 February 2008.

Amarjit Kaur subsequently instituted a civil suit claiming rights in the house on the basis of an alleged agreement to sell. That suit was dismissed under Order IX Rule 8 CPC on 17 August 2009.

Harbhajan Kaur alleged that following the death of her brother, who had been looking after her, the defendants forcibly occupied the house in January 2010 while she was away. They allegedly retained her household articles and original title documents and prevented her from re-entering the property.

The defendants contested the suit by disputing its maintainability, valuation and the plaintiff’s title and possession. They also relied upon an alleged agreement to sell dated 21 November 2006, claiming that Harbhajan Kaur had agreed to transfer the property to Amarjit Kaur for ₹3,75,500.

During the pendency of the suit, Harbhajan Kaur died. Gurwinder Kaur—the biological daughter of Amarjit Kaur and her husband—was impleaded as Harbhajan Kaur’s legal representative on the basis of a registered Will dated 15 March 2013 executed in her favour.

The Trial Court held that the Will dated 15 March 2013 was duly proved. It noted that the Will was registered and one of its attesting witnesses had been examined. The defendants, on the other hand, had admitted Harbhajan Kaur’s ownership but failed to produce or prove the original agreement to sell dated 21 November 2006. They also failed to produce documentary evidence establishing payment of the alleged sale consideration.

By judgment dated 21 October 2023, the Trial Court partly decreed the suit, granting possession and permanent injunction. It declined the relief of mandatory injunction concerning household articles because their ownership had not been proved.

The Additional District Judge, Ludhiana, dismissed the defendants’ first appeal on 29 April 2026. It affirmed that Harbhajan Kaur’s ownership stood admitted and was independently supported by municipal and electricity department records. It also held that the unproved agreement to sell did not confer title upon Amarjit Kaur.

In the regular second appeal, the appellants principally argued that since the property belonged to a female Hindu, it was required to devolve upon her heirs according to Sections 15 and 16 of the Hindu Succession Act.

The High Court rejected this argument, observing that Section 15 applies only when two conditions coexist: the property belongs to a female Hindu and she has died intestate. Harbhajan Kaur had executed a registered Will dated 15 March 2013, which had been duly proved. Consequently, her estate was governed by testamentary succession under Section 30 of the Hindu Succession Act and not by the intestate succession scheme under Sections 15 and 16.

The appellants then challenged the Will on the ground that the same person could not legally act as both its scribe and an attesting witness.

Relying upon Mathew Oommen v. Suseela Mathew, (2006) 1 SCC 519, the High Court held that no provision of law prohibits a scribe from also acting as an attesting witness. The decisive requirement is whether the person intended to attest the Will and signed it in that capacity.

The Court explained the distinction between a scribe who merely prepares or writes the document and an attesting witness who signs with the conscious intention of certifying its execution. A scribe cannot be mechanically “treated” as an attesting witness merely because his signature appears on the Will. Nevertheless, the same individual can perform both roles if the evidence establishes the requisite intention to attest.

Referring to Section 63(c) of the Indian Succession Act, the Court reiterated that an unprivileged Will must be attested by at least two witnesses. Each witness must either see the testator execute the Will or receive a personal acknowledgment of the testator’s signature, and must sign the Will in the testator’s presence.

Under Section 68 of the Indian Evidence Act, 1872—corresponding to Section 67 of the Bharatiya Sakshya Adhiniyam, 2023—at least one attesting witness must ordinarily be examined to prove a Will where such a witness is alive, capable of giving evidence and subject to the Court’s process.

The Court also relied upon N. Kamalam v. Ayyasamy, (2001) 7 SCC 503, to explain that attestation requires the witness to have witnessed the execution and subscribed his name with the consciousness and intention of certifying it.

In the present case, S.L. Mahey, Advocate, had signed the Will both as its scribe and as an attesting witness. He appeared before the Trial Court and categorically supported its execution. Despite extensive cross-examination, the appellants could not identify any material circumstance undermining his credibility or proving the absence of animus attestandi.

The mere statement that the Will had already been prepared when the testator came to the witness did not establish that he had not witnessed or attested its execution. The Will was registered, its attesting witness was examined and its execution was consistently accepted by both courts below.

The High Court found that the concurrent findings were based on a proper appreciation of the evidence and were neither factually nor legally perverse. The appellants also failed to establish any substantial question of law, which is an essential condition for entertaining a regular second appeal under Section 100 CPC.

Decision: The High Court dismissed the regular second appeal and affirmed the concurrent judgments granting possession and permanent injunction in favour of the plaintiff’s legal representative.

It upheld the validity and due proof of the registered Will and rejected the appellants’ attempt to apply the intestate succession rules under Sections 15 and 16 of the Hindu Succession Act.