Tag Archives: witness

Distinction Between – ‘Testator’ and ‘Attestors’

In Nagulapati Lakshmamma v. Mupparaju Subbaiah, (1998) 5 SCC 285, after referring to Section 63 of the Indian Succession Act, 1925 it was held as under:         “The section makes a vital distinction between the testator and the attestors in the matter of signing the Will. The testator may sign or affix his mark himself or direct some other person to sign in his presence. The reason for such a provision is quite obvious. Many a time, people who are desirous of making testamentary dispositions may be physically incapacitated from signing their names or affixing their marks on account of illness or other causes. Such persons should not be deprived of an opportunity of making a Will. Such persons can instead of signing or affixing their marks themselves can direct some other person to sign in their presence. But in the case of attestors such an enabling provision is absent. The section expressly states that each of the witnesses shall sign the Will in the presence of the testator. The privilege or power of delegation, if we may say so, is not available to the attesting witnesses under the section. When the same section makes a distinction expressly between a testator and an attestor it is not possible to accept the contention that an attestor can also direct some other person to sign or make a mark on his behalf. If a witness to the execution of the Will chooses to do so, he is not an attesting witness as there is no attestation by him as contemplated by Section 63(c) of the Indian Succession Act. Consequently, he will not be an attesting witness for the purpose of Section 68 of the Indian Evidence Act. Laxmi Kant v. Smt. Ganga Devi, 2018 (5) AWC 5141.

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Evidence of deaf and dumb person

Section 119 of the Indian Evidence Act, reads as under:
119. Dumb Witnesses. A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence.”
In a recent Judgment of the Hon’ble Supreme Court, viz., State of Rajasthan v. Darshan Singh, it was held as under:
“A deaf and dumb person is a competent witness. If in the opinion of the court, oath can be administered to him/her, it should be so done. Such a witness, if able to read and write, it is desirable to record his statement giving him questions in writing and seeking answers in writing. In case the witness is not able to read and write, his statement can be recorded in sign language with the aid of interpreter, if found necessary. In case the interpreter is provided, he should be a person of the same surrounding but should not have any interest in the case and he should be administered oath.
Language is much more than words. Like all other languages, communication by way of signs has some inherent limitations, since it may be difficult to comprehend what the user is attempting to covey. But a dumb person need not be prevented from being a credible and reliable witness merely due to his/her physical disability. Such a person though unable to speak may convey himself through writing if literate or through signs and gestures if he is unable to read and write.”

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