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 & ORS V YASIN MISTRI & ORS [RSA NO. 623 & 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.”
Thence, the HC dismissed the appeals.
