Bombay High Court
Hameed Jaffar Ahmed Ibrahim ... vs Farhat Mehdi Mandil And 10 Ors on 11 March, 2016
Bench: G.S. Patel
MPTL1731-14-FINAL.DOC
Atul
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
MISCELLANEOUS PETITION (L) NO. 1731 OF 2014
HAMEED JAFFAR AHMED IBRABIM
MANDEEL,
having his address at 203, Jaydev Towers, Plot
No. 33, Sector 9, Charkop, Kandivili (West),
Mumbai - 400 067 ...Petitioner
Versus
1. FARHAT MEHDI MANDIL,
2. MEHJABEEN MEHDI MANDIL,
Meher-dad, Flat No. 84, 8th Floor, Cuffe
Parade, Colaba, Mumbai.
3. CHITRA MEHRA,
C-73, Textile Society, Bombay Dyeing
Compound, Prabhadevi, Mumbai - 400 025
4. MUMTA RAMODIYA,
1-1, Manjrekar Sadan, 258, Dr. A.B. Road,
Worli, Mumbai - 400 030
5. DR. MOHAMED ALI JAFFAR
AHMED IBRAHIM MANDEEL,
having his address at Building No. 268,
Road No. 505, Block No. 1205, Block
Name: Madinat Hamad, Govemorate-
Northem, Baharain.
6. REZA JAFFER IBRAHIM MANDEEL,
Villa 930, Road 2731, Block No. 1027,
Karzakhan, Beharain.
7. JAWAD JAFFAR AHMED IBRAHIM
MANDEEL,
having his address at Villa 22, Building No.
72, Road No. 350, Block No. 304, Block
Name: Manama Center, Govemorate:
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Capital, Baharain.
8. MS. AMNA JAFFAR AHMED
IBRAHIM MANDEEL,
having her address at Building No. 2523,
Road No. 2551, Block No. 525, Block
Name: Sar, Govemorate: Northem,
Bahrain.
9. MS. SIDDIQA JAFFAR AHMED
IBRAHIM MANDEEL (a.k.a. Mrs.
Siddiqa Clayton) having her address
Building No. 2523, Road No. 2551, Block
No. 525, Block Name: Sar Govemorate:
Northerm, Bahrain.
10. MR. MOHAMED ALI AHMED
MANSOOR,
Road No. 3608, Block No. 736, Block Name
'A' Ali, Govemorate: Central, Bahrain.
(Legal heir of Late Ms. Batool Jaffar Ahmed
Ibrahim Mandeel)
11. MR. MOHAMED HASSAN
MUHAMMAD ALI AHMAD
MANSOOR,
having his address at Building No. 2501,
Road No. 938, Block No. 1209, Block
Name: Madinat Hamad Govemorate:
Northem, Bahrain
(Legal heir of Late Ms. Batool Jaffar Ahmed
Ibrahim Mandeel)
12. MS. MAHA MOHAMED ALI AHMAD
MANSOOR,
having her address at Building No. 290,
Road No. 3608, Block No. 736, Block Name
'A' Ali, Govemorate: Central, Bahrain.
13. MR. SADIQ MOHAMMED ALI
AHMED MANSOOR,
having his address at Building No. 290,
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Road No. 3608, Block No. 736, Block Name
'A' Ali, Govemorate: Central, Bahrain.
(Legal heir of Late Ms. Batool Jaffar Ahmed
Ibrahim Mandeel)
14. MS. NASREEN MOHAMMED ALI
AHMAD MANSOOR,
having her address at 701 Kettner Blvd,
Unit 181 San Diego, CA 92101, USA,
(Legal heir of Late Ms. Bateel Jaffar Ahmed
Ibrahim Mandeel)
15. SHAHEEN JAFFAR AHMED
IBRAHIM MANDEEL,
8432 Pine Kay, West Palm Beach, FL
33411- 5558, U.S.A. ig ...Respondents
APPEARANCES
FOR THE PETITIONER Mr. Uday Bobade, with Ms. Aditi Bhatt,
i/b Mr. Y.R. Shah
FOR RESPONDENTS NOS. Ms. J.M. Sidhwa, i/b M/s. Bina Rao & Co.
1 TO 4
FOR RESPONDENTS NOS. Mr. Abbas Muktiyar, i/b Mr. Bharat
5&8 Punekar.
CORAM : G.S.Patel, J.
DATED : 11th March 2016
ORAL JUDGMENT:
1. Heard.
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2. This is a Petition for revocation of a probate granted to
Respondent Nos. 3 and 4 in respect of a Will dated 19th September
2003 made by one Mr. Mendi Mandil ("Mehdi"), who died in
Mumbai on 3rd October 2003. The 1st Respondent to this
revocation Petition is Mehdi's widow, Farhat, and the 2nd
Respondent is their daughter Mehjabeen. Respondent Nos. 3 and 4
were executors appointed under that Will. It is they who sought and
obtained the probate.
3. Respondent Nos. 5 to 15 support the Petitioner. They all
claim to be the heirs according to Shia Law of Inheritance. The
Petitioner is Mehdi's brother.
4. Affidavits in Reply and Rejoinder have been filed. To one of
these Affidavits, filed by Respondent No. 8, I will return shortly at
the invitation of Ms. Sidhwa, learned Advocate for the Petitioner,
since I believe she is right when she says that this Affidavit is
thoroughly irresponsible.
5. However, the point that Mr. Bobade for the Petitioner
canvasses is that under traditional Shia Laws of Inheritance, the
Petitioner and Respondent Nos. 5 to 15 are all, what he calls
"sharers" and have a pre-defined fractional share in Mehdi's
estate. If he is right, and they do, they undoubtedly have a
caveatable interest, and citations ought to have been served on
them; and, consequently, since that was not done, the revocation
Petition would have to succeed. If he is not right in his submission,
however, the Petitioner and his supporting Respondents cannot be
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said to have any caveatable interest at all, and the Revocation
Petition must fail.
6. It is not in dispute that Mehdi's parents predeceased him,
and that he was survived by the 1st Respondent, his widow Farhat,
and the 2nd Respondent, his daughter, Mehjabeen. In Mr. Bobade's
submission, in Shia Law the shares of siblings are predefined. He
bases this submission on a table of sharers in Shia Law to be found
in Mulla's Principles of Mahomedan Law (19th Edition, 1990).
That table relates to Sn.90 of the commentary.
7.
Sn.90 of the commentary falls under Chapter VIII of this
treatise. That Chapter is entitled Shia Law of Inheritance. Sections
87 to 92, 96 and 97 are important. In particular, Sections 87, 88 and
89 must also be read together. For convenience, Sections 87 to 92,
96 and 97 are reproduced below:
"87. Division of heirs.-- The Shias divide
heirs into two groups, namely, (1) heirs
by consanguinity, that is, bolld
relations, and (2) heirs by marriage, that
is, husband and wife.
88. Three classes of heirs by
consanguinity.-- (1) Heirs by consanguinity
are divided into three classes, and each
class is subdivided into two sections.
These classes are respectively composed as
follows:-
I. (i) Parents;
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(ii) children and other lineal
descendants h.1.s.
II. (i) Grandparents h.h.s. (true
as well as false);
(ii) brothers and sisters and
their descendants h.1.s.
III. (i) Paternal, and (ii)
maternal, uncles and aunts, of the
deceased, and of his parents and
grandparents h.h.s., and their
descendants h.1.s.
(2) Of these three classes of heirs, the
first excludes the second from
inheritance, and the second excludes the
third. But the heirs of the two sections
of each class succeed together, the nearer
degree in each section excluding the more
remote in that section [Baillie, II, 278,k
280, 285].
89. Husband and wife.-- The husband or wife
is never excluded from succession, but
inherits together with the nearest heirs
heirs by consanguinity, the husband taking
¼ or ½, and the wife taking 1/8 or ¼ under
the conditions mentioned in the Table of
Sharers on page 84.
90. Table of Sharers--Shia Law.-- (1) For
the purpose of determining the shares of
heirs, the Shias divide heirs into two
classes, namely, Sharers and Residuaries.
There is no separate class of heirs
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corresponding to the "Distant Kindred" of
Sunni law.
(2) The sharers are nine in number. The
Table on page 84 gives a list of Sharers
together with the shares assigned to them
in Shia law.
(3) The descendants h.1.s of Sharers are
also Sharers.
91. Residuaries.-- (1) All heirs other
than Sharers are Residuaries.
(2) The descendants h.1.s. Of Residuaries
are also Residuaries.
92. Distribution of property.-- (1) If the
deceased left only one heir, the whole
property would devolve upon that heir,
except in the case of a wife. If the only
heir be a wife, the older view is that she
is entitled to no more than her Koranic
share (one-fourth) and the residue (three-
fourths) escheats to the Government.
(2) If the deceased left two or more
heirs, the first step in the distribution
of the estate is to assign his or her
share to the husband or wife. The next
step is to ascertain which of the
surviving relations are entitled to
succeed, and this is to be done with the
help of the rules laid down in sec. 88.
The estate (minus the share of the husband
or wife, if any) is then to be divided
among those entitled to succeed according
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MPTL1731-14-FINAL.DOC
to the rules of distribution applicable to
the class to which they belong.
96. Rules of succession among heirs of
the first class.-- The persons who are
first entitled to succeed to the estate of
a deceased Shia Mahomedan are the heirs of
the first class along with the husband or
wife, if any [s.92(2)]. The first class of
heirs comprises parents, children,
grandchildren, and remoter lineal
descendants of the deceased. The parents
inherit together with children, and,
failing children, with grandchildren, and
failing grandchildren, with remoter lineal
descendants of the deceased, the nearer
excluding the more remote [s.88].
Succession in this class is governed by
the following rules:-
(1) Father.- The father takes 1/6 as a
Shjarer if there is a lineal descendant;
as a Residuary, if there be no lineal
descendant [see Tab. Of Sc., No.3].
(2) Mother.- The mother is always a
Sharer, and her share is 1/6 or 1/3 [see
Tab. Of Sh., No.4].
(3) Son.- The son always takes as a
Residuary.
(4) Daughter.- The daughter inherits as a
Sharer, unless there is a son in which
case she takes as a Residuary with him
according to the rule of the double share
to the male [see Tab. Of Sh., No. 5].
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(5) Grandchildren.- On failure of
children, the grandchildren stand in the
place of their respective parents, and
they inherit according to the principle of
representation described in secs. 93, 94
and 95, that is to say -
(i) the children of each son take
the portion which their father, if
living would have taken as a
Residuary and divide it among them
according to the rule of the double
share to the male;
(ii) the children of each daughter
take the portion which their mother,
if living, would have taken either as
a Sharer or as a Residuary and divide
it among them also according to the
rule of the double share to the male
(6) Remoter lineal descendants.-
Succession among remoter lineal
descendants is governed by the same
principle of representation, that is to
say, great-grandchildren take the portion
which their respective parents, if living,
would have taken, and divide it among them
according to the rule of the double share
to the male, and great-great-grand-
children take the portion which their
respective parents, if living, would have
taken, and divide it among them also
according to the same rule.
97. Rules of succession among heirs of
the second class.- If there are no heirs
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of the first class, the estate (minus the
share of the husband or wife, if any)
devolves upon the heirs of the second
class. The second class of heirs comprises
grandparents h.h.s. and brothers and
sisters and their descendants h.1.s.
[s.88]. The rules of succession among the
heirs of this class are different
according as the surviving relations are-
(1) grandparents h.h.s., without
brothers or sisters or their
descendants;
(2) brothers and sisters of their
descendants, without grandparents or
remoter ancestors;
(3) grandparents h.h.s., with
brothers and sisters or their
descendants."
8. Ms. Sidhwa points out that the principal ground, if not the
onlyl ground, for revocation is non-service of citations on the
Petitioner and his supporting Respondents. The basis of this claim
is, as I have noted Mr. Bobade's submission, that the siblings and
their branches are "sharers". This appears not to be correct, and I
think Mr. Sidhwa is justified in her submission when she points out
that under Sns.87 and 88 in Mulla's commentary, it is clear that
heirs in Shia Law are in two groups: (a) heirs by consanguinity, i.e.,
blood relations and (b) heirs by marriage. The first of these, heirs by
consanguinity, are further divided into three classes with each class
being divided into two sub-classes. Parents fall in sub-class (i) of
Class (I). Children and lineal descendants are in sub-class (ii) of
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Class (I). Siblings and their descendants are in sub-class (ii) of
Class (II). What is important is sub-section (2) of Section 88. For
this merely provides that of these classes of heirs, the first excludes
the second from inheritance and the second excludes the third.
Within each class, the heirs of the two sub-classes or sections
succeed together, the nearer degree in each excluding the more
remote. Thus, as between the main classes, each superior class
eliminates and excludes the following class. Thus, Class I
comprising parents, children and other lineal descendants excludes
from inheritance those in Class II, i.e., grandparents, brothers and
sisters and their descendants. If there was any doubt about this, it is
put to rest by Sn.97, which says that "if there are no heris of the
first class, the estate (minus the share of the husband or wife, if
any), devolves upon the heirs of the second class.
9. Equally important is Section 89 which specifies that a spouse
is never excluded from succession but that he or she inherits
together with the nearest heirs by consanguinity, i.e., those set out
in Section 88. The table referred to in Section 90, and which is also
reproduced below, merely sets out the respective shares, in a
situation where none of these classes could be said to have been
eliminated by a receiving class. Thus, where there is a lineal
descendant, the wife would get 1/8th share.
Sharers Normal Conditions under Share as varied
share which the share is by special
inherited circumstances
of of
one two
or
more
coll
ecti
vely
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1. Husband ¼ .. When there is a ½ when no such
lineal descendant descendant.
2. Wife 1/8 1/8 When there is a ¼ when no such
lineal descendant descendant.
3. Father 1/6 .. When there is a [If there be no
(b) lineal descendant lineal
descendant, the
father inherits
as a residuary.]
4. Mother 1/6 (a) When there is 1/3 in other
a lineal cases.
descendant; or
(b) When there are
two or more
ig full
consanguine
brothers,
or
or
one such
brother and
two such
sisters, or
four such
sisters, with
the father.
5. Daughte ½ 2/3 When no son. [With the son
r she takes as a
residuary.]
6. Uterine 1/6 1/3 When no parent, or
brother lineal descendant.
[see s.88]
7. Or
sister
8. Full ½ 2/3 When no parent, or [The full sister
sister lineal descendant, takes as a
or full brother, residuary, with
or father's father the full brother
[see ss.88, 101] and also with
the father's
father, see. s.
101]
9. Consang ½ 2/3 When no parent, or [The consanguine
uine lineal descendant, sister takes as
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sister or full brother or a residuary with
sister, or the consanguine
consanguine brother and also
brother or with the
father's father. father's father:
[see ss. 88, 101] see s. 101].
10. This would be the distribution and devolution on intestacy if
all these persons had a share. It only sets out the shares, if any.
Neither the table nor its corresponding Section 90 can be read to
mean that because of this table any particular heir acquires a share.
All that Section 90 and this Table do is to provide a quick reference
to calculate the amount or extent of that share, if there is in fact a
share according to the other Sections. To read it in any other way
would mean that the all-important Sns 87, 88 and 97 are rendered
wholly otiose and meaningless. That cannot be. The Table is only
like a ready reckoner.
11. Ms. Sidhwa is also correct in drawing attention to the
illustration (d) below Section 88, which reads thus:
"(d) A Shia Mahomedan dies leaving (1) a
father, (2) a mother, (3) a daughter, (4)
a son's son, (5) a brother, and (6) a
paternal uncle. Which of these relations
are entitled to succeed?
Here the first four relations belong to
the first class of heirs, the fifth
belongs to the second class, and the sixth
belongs to the third class. The fifth and
sixth are therefore excluded from
inheritance. The father and mother belong
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to the first section of Class 1, and they
are both equal in degree. The daughter and
son's son belong to the second section,
and of these two, the daughter, being
nearer in degree, excludes the son's son.
The only persons therefore entitled to
inherit are the father, the mother and the
daughter."
(Emphasis added)
Ms. Sidhwa is correct in saying that this illustration is itself a
12.
complete answer to the Petition. There is no doubt that the
Petitioner and the supporting Respondents fall, and only fall, in
Class 2. They are excluded from inheritance since the deceased was
survived by (1) his widow and (2) his daughter, Respondents Nos. 1
and 2. Since the spouse is never excluded, the widow, too, would
succeed to inheritance.
From any perspective, therefore, the Petitioner and
13.
Respondents Nos. 5 to 15 cannot be said to be heirs or sharers and
they have no caveatable interest.
14. Mr. Bobade then invites my attention to Sections 117 and 118
of the same commentary. His submission is that no bequest to any
heir is valid unless the other heirs consent to that bequest. His
submission is that his clients' consent was, therefore, necessary for
the bequest to take effect. But this argument proceeds on one fatally
flawed assumption, viz., that the Petitioner and his siblings are in
fact heirs, i.e., that they are entitled to succession and are not
excluded from succession by virtue of the widow and the daughter
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surviving the deceased. But once they are excluded, which they are
as we have seen, they are not 'heirs', and no question of their
consent arises.
15. Relying on Section 118 of Mulla's commentary, Mr. Bobade
then submits that a Mahomedan cannot bequeath more than 1/3rd
of the surplus of his estate after payment of funeral expenses and
debts and that all benefits in excess of this cannot take effect unless
their heirs consent. Again this is of no assistance to Mr. Bobade. All
that this means is that while the Testator may have done as he
pleased with one-third of his surplus estate, the balance two-thirds
would of necessity devolve upon the heirs by consanguinity
governed by Section 88 of this very commentary. Again, this
submission proceeds on the assumption that it is established that
the Petitioner and his supporting Respondents are heirs entitled to
succeed. Once it is seen that they are not, no question of devolution
on them or of their consent arises.
16. Indeed, the argument on Sections 117 and 118 appears to me
to be somewhat circular. To invoke either of these sections, Mr.
Bobade would first have to establish that his clients and the
Respondent who support him are in fact heirs. That is a threshold
requirement that he must establish. If he cannot, no other argument
is of any avail to him.
17. Mr. Sidhwa also points out that the Petition itself is, if not
barred by limitation, at least grossly delayed and for there is no
explanation whatever for this delay. The probate was obtained on
30th June 2004. The Petition was not filed till 14th November
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2014, a good 10 years on. In the meantime, some of the
Respondents have, on what I can only describe as a thoroughly
shameful series of allegations, sought to institute a partition Suit in
repsect of certain immovable property comprised in that estate.
These allegations are contained in the Affidavit of Respondent No.
8. This is a person who is said to have been 58 years old in 2015.
She says that the deceased was her elder brother. She then proceeds
to make allegations against the 2nd Respondent and says that the
2nd Respondent was not the deceased's daughter; that she was an
illegitimate child of the 1st Respondent and her paramour; and that
the 2nd Respondent is therefore disentitled to succeed to any part
of this estate. Some of the more remarkable portions of this
Affidavit are in paragraphs 2 and 3:
"2. I say that my eldest brother Mehdi
Jaafar Ahmed Mandeel has got married on
19th December 1952 and for 7 years his
wife did not get pregnant. I say that
thereafter Dr. Mohammed Ali Mandeel
stumbled upon a report in the Glove
Compartment of Mehdi's car which stated
that he could not bear any children as he
was void of Sperms known as "AZOOSPERMIA",
which Dr. Mandeel informed my mother in my
presence.
3. I say that on April 1959, I was
visiting my brother's wife residing at
Haji Mohammed Court, 2nd Floor, Flat in
Clare Road, at Byculla, (while my brother
was away in Bahrain) and I saw her making
signs with Mr. Nakshab Jarchvi a very
famous song writer living on the 1st Floor
of Habib Court, Clare Road, at Byculla.
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After a little while Mr. Nakshab Jarchvi
rang the door bell and I have answered the
door and he was taken by surprise and he
turned immediately and ran. Mr. Majeed
another Art Director and his family were
living in Habib Court who informed my
mother and my elder sister Batool Jaafar
Mandeel that Farhat Mehdi Mandeel was
visiting Mr. Nakshab Jarchvi in his flat
on a daily basis. Mr. Hameed Mandeel i.e.
the Petitioner, who at a very young age
was sometimes accompanying her to Mr.
Nakshab's flat."
18.
If what Respondent No. 8 says about herself is true, it means
she was born in 1957. She claims that in 1959, when, on her
showing, she was two years old, she noticed, recognized and
understood all that is stated in paragraphs 2 and 3 of this Affidavit,
set out above. I very seriously doubt that at that time she was even
capable of even the physical acts to which she lays claim in
paragraph 3, leave alone recognizing anybody or his profession or
motives. In any case, her age is wholly irrelevant, for everything
that follows is wholly immaterial and cannot possibly be to her
knowledge, including anything about the deceased's alleged
medical condition. Apart from being excluded in any formal
proceedings as being hearsay, it is in itself dubious, for, even
ignoring the question of her age at that time, the fact is that she did
not make any such grievance all this time; and, more importantly,
this is not the basis of the Revocation Petition at all. Indeed, from
paragraph 1 of the Petition onwards, and in paragraphs 1, 2, 4, 5,
and 11, the Petitioner accepts in terms that the 2nd Respondent is
the daughter of the deceased Mehdi and is one of those entitled to
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succeed to his estate. The only ground taken is that under the Shia
Hanafi law, the Petitioner and the supporting Respondents are also
heirs and therefore had a caveatable interest. There are only four
grounds for revocation, sub-paragraphs (a) to (d) of paragraph 10.
The 2nd Respondent's alleged illegitimacy is not one of those
grounds. The 8th Respondent has not herself filed any Petition. She
has not made any such allegation or obtained any such adjudication.
The allegations she now makes are thoroughly scurrilous and
vexatious. They are contrary to the stand of the Petitioner himself.
The Petitioner can derive no support from the Affidavit of the 8th
Respondent.
19. I see no reason whatsoever to give any credence at all to such
an Affidavit. It is one thing to say, as Mr. Bobade does, and I will
not fault him for this, that his client has certain entitlements or
rights in law. That clearly is a matter for civil discourse. But
allegations of this stripe, wholly unsubstantiated, inordinately
delayed and clearly motivated should never find the slightest favour
in any court of law. They must be deprecated and condemned in the
strongest possible terms. They are.
20. There is no substance in the Petition. It is dismissed. There
will be no order as to costs. Mr. Bobade is correct in pointing out
that I granted an ad-interim injunction on 22nd December 2013.
Since this has held the field till today, it is continued for a period of
four weeks from today.
(G. S. PATEL, J.)
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