A Single Bench of Delhi High Court has held that even a draftsman can be an attesting witness, if the draftsman has signed on the Will having animus attestandi. The expression animus attestandi means that person attesting the Will is signing the same with an intention of attesting the Will. This was so held in the matter of Harjit Singh Vs. Surender Singh, RFA no. 24/2018, decided on 18th January, 2018.
The case of the Appellant was that the subject Will had signature of only one attesting witness, whereas Section 63 of the Indian Succession Act 1925 requires that a Will should be attested by at least two witnesses. The Will contained the signature of the scribe under the mark “drafted by”, which was argued by the Appellant that it cannot be considered as signature of the attesting witness. Thus the Will failed the test of Section 63 of Indian Succession Act therefore cannot be considered as proved.
It was held that even a draftsman can be taken as an attesting witness if he has signed the Will with an intention to attest the same.
Another factor which weighed in the mind of the Court was the said scribe not only signed as an attesting witness at the time of execution of the Will but also signed the same as an attesting witness at the time of registration of the Will before the Sub-Registrar, which was evident from the back page of the first page of the Will. Section 114 of the Indian Evidence Act 1872 prescribes that official acts have to be taken to have been properly performed and therefore in the facts of the present case where the Will is found to be registered, Sub-Registrar being an official is presumed to have correctly performed his functions of seeing that the Will has been executed by the testatrix who was present before the Sub-Registrar in accordance with law.