Proof of Will -- Scribe Signing Without Animus Attestandi -- Not counted as attesting witness
(i) Indian Succession Act, 1925, S.63(c) -- Proof of Will -- Scribe Signing Without Animus Attestandi -- A person who signs a document only in the capacity of scribe, without intention to bear witness to its execution, is not an attesting witness. Such signature cannot be counted towards the two attesting witnesses required to prove due execution of a Will. (ii) Indian Evidence Act, 1872, S.69 -- Proof of Will -- Non-Availability of Attesting Witness Not Proved -- Secondary evidence of a Will can be led under Section 69 only after establishing that no attesting witness can be found or produced. An unparticularised statement of an interested beneficiary that a witness is dead, unsupported by any independent proof, does not satisfy this condition precedent. (iii) Indian Succession Act, 1925, S.63 -- Proof of Will -- Suspicious Circumstances Remain Unexplained -- Unnatural exclusion of natural heirs, proximity of attesting witnesses to beneficiaries, and unexplained custody of the document before delivery are suspicious circumstances requiring explanation by the propounder. Failure to remove such suspicion renders the Will unproved, regardless of its being registered and unrevoked.
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