Himachal Pradesh High Court: Tarlok Singh Chauhan, J. dismissed the appeal being devoid of merits.
The facts of the case are such that respondent 1 filed a suit for declaration and permanent prohibitory injunction against the appellants alleging that the Will in question 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 is illegal and wrong. The appellants contested the claim of respondent 1 with respect to the genuineness of the Will as it is the last legal and valid Will executed by late Smt. Tulsa in favour of the appellants 2 to 4 which was registered after her death and mutation of inheritance was entered and attested in favour of appellants 2 to 4. The Trial Court decreed the Will to be valid to the extent of 1/3rd share and 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 and 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 were set aside in its entirety. Assailing this order, the instant appeal was filed.
Counsel for the appellants Mr Y. P. Sood submitted that the findings recorded by the learned Courts below are totally perverse as there was no requirement of law to examine the scribe of the Will, more especially, when one of the attesting witnesses i.e. Lovender Singh in this case has already been examined.
Counsel for the respondents Mr Bimal Gupta and Ms Poonam Moghta submitted that the parties to the lis are Muslims and governed by Mohammedan Law and the mode of proving the Mohammedan Will is different as a Mohammedan will is required to be proved under Section 67 of the Evidence Act, 1872.
The Court thus observed that 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 Court relied on judgment Miyana Hasan Abdulla v. State of Gujarat, AIR 1962 Gujarat 214 wherein it was observed that on perusal of 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 counter signs a document as a person who was present at the time when the document was signed by another person.
The Court observed that no exception can be taken to 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 Court thus held that in the present case “non-examination of the scribe assumes importance because the witness Lovender Singh does not state to have witnessed Smt. Tulsa, the testator, putting her signatures over the Will.”
In view of the above, appeal was dismissed.[Ashiq Ali v. Yasin Mistri, 2021 SCC OnLine HP 735, decided on 20-04-2021]
Arunima Bose, Editorial Assistant has reported this brief.