Whether the execution of the Muslim will is proved if propounder of will fails to examine scribe of will?

While a Mohammedan Will is required to be proved under Section 67 of the Evidence Act, 1872, a Will governed by the provisions contained in Part VI of the Indian Succession Act, 1925, is required to be proved as laid down under Section 68 of the Evidence Act, 1872. Therefore, the validity of the will in question Exhibit DW-2/A is required to be examined under the provisions of Section 67 of the Evidence Act.

10. Section 67 of the Evidence Act, reads as under:-

“67. Proof of signature and handwriting of person alleged to have

signed or written document produced.- If a document is alleged to be

signed or to have been written wholly or in part by any person, the

signature or the handwriting of so much of the document as is

alleged to be in that person’s handwriting must be proved to be in his

handwriting.”

11. 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 counter signs a document as a person who was present at the time when the document was signed by another person. This was so held by the learned Division Bench of the Gujarat High Court in Miyana Hasan Abdulla and another vs. State of Gujarat AIR 1962 Gujarat 214 and I see no reason to take a different view.

12. In such circumstances, obviously 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 Lovender Singh DW-2 does not state to have witnessed Smt. Tulsa, the testator, putting her signatures over the Will.

Substantial questions of law are answered accordingly.

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No. 623 of 2008 a/w

RSA No. 624 of 2008

 

Date of decision: 20.4.2021

RSA No. 623 of 2008

Ashiq Ali (deceased) through his LRs Vs Yasin Mistri (deceased) through his LRs

Coram

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Date of decision: 20.4.2021

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