Bilquis Zakiuddin Bandookwala vs Shehnaz Shabbir Bandukwala
2010 Latest Caselaw 296 Bom

                                        1

    jpc
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                                
                      REVIEW PETITION NO. 41 OF 2010




                                                        
                                        IN
                   NOTICE OF MOTION NO. 2974 OF 2008
                                        IN




                                                       
                            SUIT NO. 2510 OF 2008

    Bilquis Zakiuddin Bandookwala




                                            
    and others                                    .. Plaintiffs/Petitioners
    Versus                   
    Shehnaz Shabbir Bandukwala                    .. Defendant/Respondent
                            
    Mr. S. A. Ahmed for the Plaintiffs/Petitioners
    Mr. R.M. Pardiwalla i/by Mulla & Mulla for the Defendant/Respondent

                                   CORAM : SMT. ROSHAN DALVI, J.
           


                       RESERVED FOR JUDGEMENT  ON :   03/12/2010
        



                   JUDGEMENT PRONOUNCED   ON :    /12/2010
                                                         
    J U D G M E N T :

th

1. The plaintiffs have applied for review of the order dated 14

October, 2010 on the ground of an error apparent on the face of the

record and for the reasons considered sufficient by the plaintiffs.

th

2. The order dated 14 October, 2010 came to be passed in

the above Notice of Motion which was taken out by the plaintiffs

for administration of the estate of the deceased son of the plaintiff

No.1 and brother of the other plaintiffs. The Suit has been filed for

administration of his estate on the ground of intestacy.

3. The defendant produced Will of the deceased who is her

deceased husband. The marriage of the defendant and the

deceased was registered under the Special Marriage Act.

Consequent upon such registration, they would be governed by the

Indian Succession Act for the purpose of succession, both intestate

or testamentary. Since the deceased would be governed by the

Indian Succession Act, he would have no restrictions on him to

bequeath only 1/3 of his property by a Will as per the Muslim

Personal Law. He was also not required to obtain consent of the

heirs to bequeath in excess of 1/3rd Property. He would be entitled

to bequeath the entire of his properties. It would, of course, be

required to be proved by the heirs propounding the Will. The

deceased, being a Muslim would not require to have the Will

probated under the Indian Succession Act which applied to his

succession. Based on such facts in the suit of the plaintiff, I came

to the prima facie conclusion that the marriage being registered and

the Will being produced and the probate of the Will not being

required, the defendant would have to prove the Will in the suit

itself. The onus would be on the defendant to prove the Will.

4. Written statement was filed. The rejoinder of the plaintiff

made out a case of forgery of the Will. I consequently framed the

issues which are similar to the issues which are framed in the

testamentary suits. Since the relationship between the parties as

well as properties of the deceased were admitted, the defendant

had the "right to begin" the evidence.

5. It appears that both the Advocates relied upon the Judgment

of Justice Nishita Mhatre, reported in Sayeeda Shakur Khan &

others Vs. Sajid Phaniband and another, 2006 (5) Bom.C.R.7

which has not been specifically set out in my order.

6. Mr. Ahmed appearing on behalf of the petitioner in this

Review Petition has relied upon para 13 of the said Judgment, which

reads thus:

"In my view, prima faice, it appears that a Muslim

who marries under the Special Marriage Act is entitled to bequeath his entire property. There would be no restriction on him to bequeath only 1/3 of his property as is provided under the Muslim Personal Law. Moreover, such a person would not have to obtain the

consent of the heirs in order to bequeath in excess of the legal third of his property. However, once a Muslim who is married under the Special Marriage Act is treated on par with persons of other communities, married under the Special Marriage Act, all the rigours of the

Indian Succession Act are applicable. Prima facie, it appears to me that a Will of such a Muslim who was married under the Special Marriage Act would require to

be probated."

Mr. Ahmed concedes that a Muhammadan who marries

under the Special Marriage Act is entitled to bequeath his entire

property as observed in this paragraph. He also contends that the

other observations in the paragraph would also apply to the

deceased's Will. Those are that he would be treated on par with

persons of other communities, married under the Special Marriage

Act and hence the rigours of the Indian Succession Act applicable

to such Wills would also apply to the deceased. Mr. Ahmed has

argued that because this judgment had not been considered by

me, an error in coming to the conclusion must be corrected. Mr.

Pardiwalla contended that his case does not fall within the purview

of Review application under Order 47 of the Civil Procedure Code.

7. The Will which is sought to be relied upon by any party is

required to be proved in all cases. It may be proved as any other

document requiring attestation as specifically set out in the Indian

Succession Act as well as Indian Evidence Act, in a suit filed by the

parties where the probate is not required and in a probate petition

filed by the parties in cases where the probate is required.

8. The consequences of registration of the marriages under

the Special Marriage Act, 1954, are set out in Section 21 of the Act

thus:

"21. Succession to property of parties married under Act._ Notwithstanding any restrictions contained in the Indian Succession Act, 1925, with respect to its application to members of certain communities, succession to the property

of any person whose marriage is solemnized under this Act and to the property of the issue of such marriage shall be regulated by the provisions of the said Act and for the

purpose of this Section that Act shall have effect as if Chapter II of Part V (Special Rules for Parsi Intestates) had been

omitted therefrom".

9. Hence, when a person marries under the Special Marriage

Act, he would be free from the restrictions contained in the Indian

Succession Act with respect to the application of the Indian

Succession Act to him as a Mohammedan. The section relates to

the succession of the properties of the persons married under the

Act and to the properties of the issue of such marriage. That

succession is notwithstanding any restrictions contained in the

Indian Succession Act, 1925. Hence sections setting out

restrictions upon the communities would not apply. The other

provisions of the Act would.

10. The restrictions under the Indian Succession Act are inter

alia with regard to the proof of the Will only by obtaining probate in

case of certain communities set out in Sections 29, 57, 58 and 213

of the Indian Succession Act.

11. The relevant part of Section 29 of the Indian Succession

Act, reads thus:

"PART V INTESTE SUCCESSION CHAPTER I

PRELIMINARY

29. Application of Part._ (1) This Part shall not apply to any intestacy occurring before the first day of January, 1866, or to the property of any Hindu, Muhammadan, Buddhist, Sikh

or Jaina."

12. Section 29 is, in Part V of the Indian Succession Act,

relating to intestate succession. Chapter II therein deals with Rules

in cases of intestates other than Parsis shown in Sections 31 to 40 of

the Indian Succession Act. Under Section 29(1), these rules do not

apply inter alia to Mohammedans. Hence 29(1) puts restrictions

upon the applicability of Part V including Sections 31 to 40 to

Mohammedans. Under the non-obstante clause mentioned in

Section 21 of the Special Marriage Act notwithstanding such

restrictions, the succession of testates mentioned under the

Special Marriage Act would be regulated by the Indian Succession

Act. The result is that the restriction to succession would not be

applicable to Mohammedans (or any other communities mentioned

in Section 29 of the Indian Succession Act) as per the Special

Marriage Act. Consequently Part V of the Indian Succession Act

would apply to Mohammedans. Their intestate succession would

be governed by the Rules contained in Sections 31 to 40 of the

Indian Succession Act. The deceased, however died testate.

13. Under Section 57 of the Indian succession Act, the cases

where probate is required are set out. Section 57 also excludes

Mohammedans. The relevant part of Section 57 reads thus:

"PART VI

TESTAMENTARY SUCCESSION CHAPTER I INTRODUCTORY

57. Application of certain provisions of Part to a class of

Wills made by Hindus, etc._ The provisions of this Part which

are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply-

(a) to all Wills and codicils made by any Hindu, Bhuddhist, Sikh or Jaina, on or after the first day of September,

1870, within the territories which at the said date were subject to the Lieutenant-Government of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Court of Judicature at Madras and Bombay; and

(b) to all such Wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories of limits ; and

(c) to all Wills and codicils made by any Hindu, Buddhist , Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b)."

14. Hence, probate would not be required to be obtained in

cases of Wills of Mohammedans. Therefore, the authenticity of the

Will of a Mohammedan shall be required to be considered, whenever

called upon by any Court in proceedings under which the Will of a

Mohammedan, as any other document, is produced and is required

to be proved. Section 57 of the Indian Succession Act does not set

out the extent of the properties that a Mohammedan can bequeath,

any restriction not to consider any Will of any Mohammedan except

if probated, and/or any other restrictions. The restrictions are

only under the Muslim Personal Law.

15. Succession to the property of such persons would be

notwithstanding those restrictions for the members of certain

communities like Hindus, etc. There is no restriction for the

members of the Mohammedan community for proving of Will only

by obtaining probate of this Court. Therefore, if the deceased was a

Hindu, Buddhist, Sikh or Jain propounding a Will made outside

Mumbai (or other metropolitan cities mentioned in Section 57) or for

properties bequeathed outside Mumbai ( or other Metropolitan

cities mentioned in Section 57), the restriction would be applied to

him if he married under the Special Marriage Act. Since the

deceased was Mohammedan, the restrictions under Section 57 of

the Indian Succession Act would not apply to him.

16. The relevant part of Section 58 of the Indian Succession

Act reads thus:

58. General application of Part._ (1) The provisions of this Part shall not apply to testamentary succession to

the property of any Mohammedan nor, save as provided by Section 57, to testamentary succession to the property of any Hindu, Buddhist, Sikh or Jaina; nor shall they apply to

any Will made before the first day of January, 1866.

(2) Save as provided in sub-section (1) or by any other law for the time being in force, the provisions of this Part shall constitute the law of India applicable to all cases

of testamentary succession."

17. Under Sections 57 and 58 there are no restrictions upon

Mohammedans and none would apply to the deceased. In fact, there

is a facility to Mohammedans not to apply for and obtain probate.

18. Consequently, in view of the first clause of Section 21 of

the Special Marriage Act, 1954 being a non-obstante clause so far

as it relates to Sections 57 and 58 of the Indian Succession Act, the

effect of the marriage of the deceased with the defendant would be

that his succession would be governed under the Indian Succession

Act. He would be entitled to bequeath the entire of his property by

Will. The restrictions under Sections 57 and 58 of the Indian

Succession Act which are restrictions only upon the Hindu, Buddhist,

Sikh or Jain communities would not be applicable to the deceased.

19. Similarly, Mr.Ahmed referred to the applicability of

Section 213 of the Indian Succession Act, the relevant part of which

reads thus:

"213. Right as executor or legatee when established._ (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of

competent jurisdiction in (India) has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.

(2) This section shall not apply in case of Wills made by Mohammedans......."

Hence section 213 of the Indian Succession Act also puts

restrictions upon executors and legatees of certain communities.

There are no such restrictions upon Mohammedans. Hence, if an

executor or a legatee of a Hindu etc. seeks to execute a right under

a Will, even if not executed in Mumbai ( or any other metropolitan

cities) or for properties not in Mumbai ( or any other Metropolitan

cities) he would have the restrictions upon him to probate the Will

he propounds. There is no restriction upon Wills of Mohammedans

under Section 213 also. The exception under Section 213 (2) inter

alia upon Mohammedans gives them a facility to propound a Will

which is not probated.

20. That would, of course, be subject to proof, but in that

Court where it is relied upon itself.

21. It is contended by Mr. Ahmed on behalf of the plaintiff that

under Section 213 of the Indian Succession Act, 1925, the

defendant as legatee cannot establish her right as such in any Court

unless she had probated the Will that she has propounded even

though she is a Mohammedan because she has propounded

the Will of the deceased to whom the Indian Succession Act applies

and consequently as per the Judgment in Sayeeda Shakur Khan

(supra)- probate of the Will of such Mohammedan would be

required to be granted. There is no restriction upon Mohammedans

to apply for probate under Section 213(2) of the Indian Succession

Act. Hence the non-obstante clause in Section 21 of the Special

Marriages Act would not also require the defendant to have such

restriction placed on her.

22. Section 21 of the Special Marriage Act, and Sections 29,

57, 58 and 213(2) of the Indian Succession Act are required to be

seen together and reconciled. Section 21 of the Special Marriage

Act applies to the succession of the deceased. His Intestate

succession would be governed by Sections 31 to 40 of the Indian

Succession Act. Sections 57 and 58 of the Indian Succession Act

do not put any restrictions upon proving the Will of the deceased

Mohammedan. Section 213 of the Indian Succession Act applies to

the claim of the defendant. The defendant as legatee may otherwise

require to probate the Will she propounds. She would be exempted

from probating the Will since she is a Mohammedan, under Section

213(2) of the Indian Succession Act. Section 213 does not deal

with the extent of succession of the deceased. It does not put any

restrictions upon the deceased as a Mohammedan to have his Will

probated. It only deals with the right of the claimants to follow the

procedure set out in that legislation. The defendant would not

require to obtain the probate of the Will she propounds because

she is a Mohammedan and it matters not how and under which

legislation she has married. As she claims properties by

testamentary succession, that succession is governed under

Section 21 of the Special Marriage Act.

23. Hence, paragraph 13 of the the Judgment in the case of

Sayeeda Shakur Khan (Supra) cannot be relied upon to conclude

the requirement of allowing probate. The aforesaid sections 29, 30 to

41, 57, 213 etc. it appears, were not shown to the learned Judge.

Besides that case did not deal with the claim of the heirs of the

deceased against the claim of a beneficiary under his Will in an

administration suit. The suit related to directions in respect of

tenants of a tenanted property and accounts thereof. Considering

all of the sections together, no restrictions can be put upon the

defendant claiming as legatee or in respect of the Will of the

deceased which does not restrict his testamentary succession under

any of the provisions of the Indian Succession Act.

24. The defendant, therefore, shall not require to obtain

probate of the Will of her deceased husband. She shall be entitled

to rely upon the writing of the deceased and prove the same as a

document requiring attestation as required under the provisions

contained in Sections 68 and 71 of the Indian Evidence Act and the

special provisions of Section 63 of the Indian Succession Act

applicable to the succession of the the deceased, in this suit itself.

25. The Review Petition is disposed of accordingly. The Suit

shall proceed as previously directed.

26. Notice of Motion No.3312 of 2010 in the above Review

Petition is also disposed of accordingly.

( ROSHAN DALVI, J.)