When a document is written by one individual and signed by another, the former’s handwriting and the latter’s signature must also be proven: High Court of Himachal Pradesh
What Section 67 of the Evidence Act refers to is the signature of a witness who countersigns a document as a person who was present at the time when the document was signed by another person. Since, under Section 63 of the Indian Succession Act, the marginal witnesses while appearing have to prove under Section 68 of the Indian Evidence Act that the attestor had scribed the Will in their presence and after having heard and understood the same had signed or put her thumb impression in their presence and further that both attesting witnesses then appended their signatures in presence of the attestator. This remarkable judgment was passed by the High Court of Himachal Pradesh in the matter of ASHIQ ALI &amp; ORS V YASIN MISTRI &amp; ORS [RSA NO. 623 &amp; 624 OF 2008] by Honourable Justice Tarlok Singh Chauhan. Both parties are deceased, hence, were represented through their legal representatives. Both the appeals were taken together since there were common facts and laws applicable. The facts of the case are that respondent 1 filed a suit for declaration and a permanent prohibitory injunction against the appellants since he alleged that the disputed Will was executed by the mother of appellant 1, respondents, and grandmother of the appellants 2 to 4 in respect of properties owned and possessed by her in favour of the appellants 2 to 4 as illegal and wrong. The Trial Court decreed the Will to be valid to the extent of 1/3rd share and the remaining 2/3rd share was held to have devolved upon the legal heirs of late Smt. Tulsa. Feeling aggrieved two appeals by each party was filed wherein the appeal filed by respondent 1 was allowed an appeal filed by the appellants was dismissed in favour of the appellants to the extent that the Will is held to be legally and validly executed by Smt. Tulsa was set aside in its entirety. Assailing this order, the instant appeal was filed. The HC observed that “the parties in dispute are Muslims and governed by Mohammedan Law and the law of Will as prescribed in Chapter-III, Rule 184 of the Mohammedan Law makes it clear that a Will may be executed in writing or oral, showing a clear intention to bequeath the property. However, a limitation is also prescribed that a valid Will by a Mohammedan will not be for more than 1/3rd of the surplus of his/her estate and that to a non-heir. The Muslim Law of Will by Mulla “Principles of Mohammedan Law” provides for a Will in Chapter-IX in Sections 115,116 and 117.” The Court relied on judgment Miyana Hasan Abdulla v. the State of Gujarat, AIR 1962 and stated that “In Section 67 of the Evidence Act, 1872 it is amply clear that where the document is written by one person and signed by another, the handwriting of the former and the signature of the later have both to be proved in view of Section 67 of the Evidence Act. What Section 67 of the Evidence Act refers to, is the signature of a witness who countersigns a document as a person who was present at the time when the document was signed by another person.” Thus, the HC asserted that “no exception can be taken to this part of the findings recorded by the learned first Appellate Court, whereby it drew an adverse inference against the appellants for not examining the scribe of the document Shri Shamshad Ahmed Qureshi, who was very much alive at that time and even, in case, he was suffering from ailment his statement could have conveniently been recorded on commission. The non-examination of the scribe assumes importance because the witness does not state to have witnessed Smt. Tulsa, the testator, putting her signatures over the Will.”
 Hig h C o urt of H.P on 27 04 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLARSA No. 6208 a wRSA No. 6208Reserved on: 08.04.2021Date of decision: 20.4.2021RSA No. 6208Ashiq Alithrough his LRs and others …..Appellants. VersusYasin Mistrithrough his LRs and others ….Respondents. RSA No. 6208Ashiq Alithrough his LRs and others …..Appellants. VersusYasin Mistrithrough his LRs and others ….Respondents. CoramThe Hon’ble Mr. Justice Tarlok Singh Chauhan Judge.Whether approved for reporting 1 No.For the Appellants : Mr. Y. P. Sood Advocate. For the Respondents : Mr. Bimal Gupta Sr. Advocate with Ms. Poonam Moghta Advocate for respondents No. 1(a) to 1(h).Mr. Vinod Chauhan Advocate for respondents No. 2(a) and 2(b).1 Whether reporters of Local Papers may be allowed to see the Judgment Yes Hig h C o urt of H.P on 27 04 HCHP 2Tarlok Singh Chauhan JudgeSince common questions of law and facts arise forconsideration in both the appeals they are taken up together and arebeing disposed of by way of a common judgment. 2.Briefly stated the facts of the case are that respondent No.1 filed a civil suit for declaration and permanent prohibitory injunctionagainst the appellants alleging herein that the Will Exhibit DW 2 Aexecuted by the mother of appellant No. 1 respondents andgrandmother of the appellants No. 2 to 4 in respect of propertiesowned and possessed by her in favour of the appellants No. 2 to 4 isillegal and wrong and she did not execute any legal and valid willduring her lifetime nor she could execute the Will as per the PersonalLaw applicable to the parties and it was further the case of respondentNo. 1 that in case the Will is held to be legally validly executed in thatevent also the same is not valid beyond 1 3rd share as the Will beyond1 3rd share by Muslim is not permissible under the Personal Law.2.The appellants contested the claim of respondent No. 1with respect to the genuineness of the Will and averred that the WillExhibit DW 2 A is the last legal and valid Will executed by late Smt.Tulsa in favour of the appellants No. 2 to 4 and this fact about theexecution of the Will was also in the knowledge of respondent No. 1. In Hig h C o urt of H.P on 27 04 HCHP 3pursuance to the Will which was registered after the death of Smt.Tulsa mutation of inheritance was also entered and attested in favourof appellants No. 2 to 4.3.The learned Trial Court after framing the issues andevaluating the evidence decreed the suit partly by holding the Will tobe duly executed in accordance with law however it came to theconclusion that as the personal law applicable to the parties did notpermit Smt. Tulsa to execute the Will beyond 1 3rd of her property therefore Will was held to be valid only to the extent of 1 3rd shareand remaining 2 3rd share was held to have devolved upon the legalheirs of late Smt. Tulsa.4.The appellants feeling aggrieved and dis satisfied with thejudgment and decree passed by the learned Trial Court filed anappeal before the learned Appellate Court below claiming therein thatthe Will be held to be legal and valid in its entirety and respondent No.1 also filed separate appeal assailing the decree to the extent whichwas against him. The learned first Appellate Court below decided boththe appeals vide a common judgment and decree and the appeal filedby respondent No. 1 was allowed whereas appeal filed by theappellants was dismissed and the finding recorded by the learned TrialCourt below in favour of the appellants to the extent that the Will is Hig h C o urt of H.P on 27 04 HCHP 4held to be legally and validly executed by Smt. Tulsa were set aside inits entirety.5.Feeling aggrieved and dis satisfied with the impugnedjudgments and decrees passed by both the Courts below theappellants preferred the Regular Second Appeals which came to beadmitted on 24.11.2008 on the following substantial questions of law: “1. Whether adverse interference against the due execution of legaland valid Will could be drawn by the learned Appellate Court belowfor not examining the scribe to prove the Will 2. Whether the learned first appellate court below has misread andmis appreciated the statement of DW 2 Lavinder Singh attestingwitness who has supported the due execution and attestation of theWill and the findings recorded by the first appellate court below arevitiated on this Count ”Substantial questions of Law No. 1 and 2Since both the questions are interlinked and interconnected therefore they are taken up together for consideration andare being answered by common reasoning. 6.At the outset it needs to be observed that the parties tothe lis are Muslims and governed by Mohammedan Law and the law ofWill as prescribed in Chapter III Rule 184 of the Mohammedan Lawmakes it clear that a Will may be executed in writing or oral showing aclear intention to bequeath the property. However a limitation is also Hig h C o urt of H.P on 27 04 HCHP 5prescribed that a valid Will by a Mohammedan will not be for morethan 1 3rd of the surplus of his her estate and that to an non heir. TheMuslim Law of Will by Mulla “Principles of Mohammedan Law”provides for a Will in Chapter IX in Sections 115 116 and 117.7.It would be noticed that the learned first Appellate Courthas drawn an adverse inference against the appellants on the groundthat the scribe of the Will Shri Shamshad Ahmed Qureshi even thoughlive has not been produced in the witness box. This would be clearlyevident from the para 19 of the judgment which reads as under: “The will is shown to have been scribed by the documents writer ShriShamshad Ahmed Qureshi and attested by Mohd. Ramzan andLovender Singh. It would be seen that scribe Shamshad is alive buthas not been produced in the witness box. DW 1 Ashiq Ali in hiscross examination has admitted that Shamshad Qureshi is alive andresiding in Gunnughat at Nahan. Although he has stated that he hasheart trouble and he is not in a position to walk but his statementcould have been got recorded by getting a local commissionerappointed. No such steps were taken by the defendants. Oneattesting witness Lovender Singh has been produced whereasanother attesting witness Mohd. Ramzan has died. Since Mohd.Ramzan is no more the scribe who is alive should have beenproduced in the witness box. His non production or for non gettinghis evidence recorded by appointment of commission an adverseinterference is required to be drawn against the execution of the Will.Then Lovender Singh does not state to have witnessed Smt. Tlsaputting her signatures. As already stated Mohd. Ramzan has alreadydied and scribe Shamshad Ahmed Qureshi has not produced thusthere is no evidence to prove that the witness had seen Smt. Tulsa Hig h C o urt of H.P on 27 04 HCHP 6putting her signatures over the Will. Under Section 63 of IndianSuccession Act the marginal witnesses while appearing have toprove under Section 68 of the Indian Evidence Act that the attestorhad scribed the Will in their presence and after having heard andunderstood the same had signed or put her thumb impression in theirpresence and further that both attesting witnesses then appendedtheir signatures in presence of the attestator. These requirements oflaw have not been proved to have been fulfilled by Lovender Singh the only attesting witness produced in the Court. Regarding themode of execution the case cited in 2007RCR 240 is referred to.Also the case cited in PLR 1998524 is relevant. These wereheld to be the inherent defects in the execution of the Will in thecitation CCC 1996Supreme Court 37.”8.It is vehemently argued by Shri Y. P. Sood learnedcounsel for the appellants that the findings recorded by the learnedCourts below are totally perverse as there was no requirement of lawto examine the scribe of the Will more especially when one of theattesting witness i.e. Lovender Singh in this case has already beenexamined.9.On the other hand Shri Bimal Gupta learned SeniorAdvocate duly assisted by Ms. Poonam Moghta learned Advocate would argue on the strength of the judgment of this Court in MehandiHassan and others vs. Rafiquan and others2 Shim. LC. 231that the mode of proving the Mohammedan Will is different fromproving Will governed by the provisions contained in Part VI of Indian Hig h C o urt of H.P on 27 04 HCHP 7Succession Act 1925. While a Mohammedan Will is required to beproved under Section 67 of the Evidence Act 1872 a Will governed bythe provisions contained in Part VI of the Indian Succession Act 1925 is required to be proved as laid down under Section 68 of the EvidenceAct 1872. Therefore the validity of the will in question Exhibit DW 2 Ais required to be examined under the provisions of Section 67 of theEvidence Act.10.Section 67 of the Evidence Act reads as under: “67. Proof of signature and handwriting of person alleged to havesigned or written document produced. If a document is alleged to besigned or to have been written wholly or in part by any person thesignature or the handwriting of so much of the document as isalleged to be in that person’s handwriting must be proved to be in hishandwriting.”11.Where the document is written by one person and signedby another the handwriting of the former and the signature of the laterhave both to be proved in view of Section 67 of the Evidence Act.What Section 67 of the Evidence Act refers to is the signature of awitness who counter signs a document as a person who was presentat the time when the document was signed by another person. Thiswas so held by the learned Division Bench of the Gujarat High Court inMiyana Hasan Abdulla and another vs. State of Gujarat AIR 1962Gujarat 214 and I see no reason to take a different view. Hig h C o urt of H.P on 27 04 HCHP 812.In such circumstances obviously no exception can betaken to this part of the findings recorded by the learned first AppellateCourt whereby it drew an adverse inference against the appellants fornot examining the scribe of the document Shri Shamshad AhmedQureshi who was very much alive at that time and even in case hewas suffering from ailment his statement could have conveniently beenrecorded on commission. The non examination of the scribe assumesimportance because the witness Lovender Singh DW 2 does not stateto have witnessed Smt. Tulsa the testator putting her signatures overthe Will.Substantial questions of law are answered accordingly.13.In view of the aforesaid discussion I find no merit in theseappeals and the same are accordingly dismissed so also pendingapplication(s) if any. Parties are left to bear their own costs. 