Bombay High Court
Mohd. Dawood Jamil Mirza Rashid ... vs The State Of Maharashtra And Ors on 1 September, 2021
Bench: R. G. Avachat
1 FA-2772, 2773, 3352, 3354-2016.doc
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 2772 OF 2016
WITH
CIVIL APPLICATION NO. 10181 OF 2016
Mohd. Rafat Afandi s/o Mohd. Ismail Afandi
Age: 72 years, Occu: Business,
R/o. Buddi Lane, Near Nehru Bhavan,
Aurangabad ... Appellant
(Ori. Resp. No.2/
Ori. Objection
Petitioner No.2)
Versus
1] Nikhat Shabana w/o Abrar Ahmed (Ori.Applicant No.2)
(d/o Late Mohd. Shameem Afandi)
Age: 47 years, Occu: Household,
R/o. Plot No.21-22, N-13, CIDCO,
Behind Maulana Azad Society,
Aurangabad
2] Mohd. Dawood Jamil s/o Mirza Rashid Baig
Age: 47 years, Occu: Service,
R/o. 5, Hina Complex, Juna Bazar, (Ori.Respondent/
Aurangabad Ori.Objection
Petitioner No.1)
3] The State of Maharashtra
Through Collector,
Collector Office, Aurangabad (Ori.Resp.No.1)
4] Billiquis Jahan Begum w/o
Mohd. Shamim Afandi (Died) ... Respondents
....
Mr. M. M. Joshi, Advocate for petitioner
Mr. A. D. Kasliwal, Advocate for respondent No.1
Mr. S. B. Ghute, Advocate for respondent No.2
Mr. A. M. Phule, AGP for respondent No.3
....
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WITH
FIRST APPEAL NO. 2773 OF 2016
WITH
CIVIL APPLICATION NO. 10182 OF 2016
Mohd. Dawood Jamil s/o Mirza Rashid Baig
Age: 47 years, Occu. Service,
R/o. 5, Hina Complex, Juna Bazar,
Aurangabad ... Appellant
(Ori. Applicant)
Versus
1] The State of maharashtra
Through Collector,
Collector Office, Aurangabad
2] Nikhat Shabana w/o Abrar Ahmed,
(d/o Late Mohd. Shameem Afandi)
Age: 47 years, Occu. Household,
R/o. Plot No.21-22, N-13, CIDCO,
Behind Maulana Azad Society,
Aurangabad
3] Mohd. Rafat Afandi s/o Mohd. Ismail Afandi
Age: 72 years, Occu. Business,
R/o. Buddi Lane, Near Nehru Bhavan, (Ori. Objection
Aurangabad Petitioner No.4)
4] Farzana Begum w/o K. M. Minuddin
Age: 62 years, Occu: Household, (Ori. Objection
R/o. Buddi Lane, Petitioner No.5)
Near Azad High School, Aurangabad
5] Kazi Mohd. Faizanuddin
s/o Kazi Mohd. Moinuddin
Age: 35 years, Occu. Nil,
R/o. Buddi Lane, (Ori. Objection
Near Azad High School, petitioner No.6)
Aurangabad
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6] Billiquis Jahan Begum w/o
Mohd. Shamim Afandi (Died) ... Respondents
....
Mr. S. B. Ghute, Advocate for petitioner
Mr. A. M. Phule, AGP for respondent No.1
Mr. A. D. Kasliwal, Advocate for respondent No.2
Mr. M. M. Joshi, Advocate for respondent No.3
....
WITH
FIRST APPEAL NO. 3352 OF 2017
Mohd. Rafat Afandi s/o Mohd. Ismail Afandi
Age: 72 years, Occu. Business,
R/o. Buddi Lane, Near Nehru Bhavan, ... Appellant
Aurangabad (Ori. Objection
Petitioner No.4)
Versus
1] Mohd. Dawood Jamil s/o Mirza Rashid Baig,
Age: 47 years, Occu. Service,
R/o. 5, Hina Complex, Juna Bazar,
Aurangabad
2] The State of Maharashtra
Through Collector,
Collector Office, Aurangabad
3] Nikhat Shabana w/o Abrar Ahmed,
(d/o Late Mohd. Shameem Afandi)
Age: 47 years, Occu. Household,
R/o. Plot No.21-22, N-13, CIDCO,
Behind Maulana Azad Society,
Aurangabad
4] Farzana Begum w/o K. M. Minuddin
Age: 62 years, Occu: Household, (Ori. Objection
R/o. Buddi Lane, Petitioner No.5)
Near Azad High School, Aurangabad
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5] Kazi Mohd. Faizanuddin
s/o Kazi Mohd. Moinuddin
Age: 35 years, Occu. Nil,
R/o. Buddi Lane, (Ori. Objection
Near Azad High School, petitioner No.6)
Aurangabad
6] Billiquis Jahan Begum w/o
Mohd. Shamim Afandi (Died) ... Respondents
....
Mr. M. M. Joshi, Advocate for appellant
Mr. S. B. Ghute, Advocate for respondent No.1
Mr. A. M. Phule, AGP for respondent No.2
Mr. A. D. Kasliwal, Advocate for respondent No.3
....
WITH
FIRST APPEAL NO. 3354 OF 2017
Mohd. Dawood Jamil s/o Mirza Rashid Baig
Age: 47 years, Occu: Service,
R/o. 5, Hina Complex, Juna Bazar,
Aurangabad ... Appellant
(Ori. Respondent/
Ori. Objection
Petitioner No.1)
Versus
1] Nikhat Shabana w/o Abrar Ahmed (Ori.Applicant No.2)
(d/o Late Mohd. Shameem Afandi)
Age: 47 years, Occu: Household,
R/o. Plot No.21-22, N-13, CIDCO,
Behind Maulana Azad Society,
Aurangabad
2] Mohd. Rafat Afandi s/o Mohd. Ismail Afandi
Age: 72 years, Occu: Business,
R/o. Buddi Lane, Near Nehru Bhavan,
Aurangabad (Ori.Respondent No.2./
Ori.Obj.Petitioner. No2)
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3. The State of Maharashtra
Through Collector,
Collector Office, Aurangabad (Ori.Resp.No.1)
4] Billiquis Jahan Begum w/o
Mohd. Shamim Afandi (Died) ... Respondents
....
Mr. S. B. Ghute, Advocate for appellant
Mr. A. D. Kasliwal, Advocate for respondent No.1
Mr. Milind M. Joshi, Advocate for respondent No.2
Mr. A. M. Phule, AGP for respondent No.3
....
CORAM : R. G. AVACHAT, J.
RESERVED ON : 24th AUGUST, 2021
PRONOUNCED ON : 01st SEPTEMBER, 2021
J U D G M E N T :-
These four appeals are being decided by this common
judgment, since common questions of facts and law arise therein.
Moreover, the parties to these appeals are almost common.
2. The challenge in First Appeals No.2772/2016 and
3354/2017 is to the order dated 02.03.2016, passed by 4 th Jt. Civil
Judge, Senior Division, Aurangabad in Civil M.A. No.856/2004. By
the order impugned in both these appeals, the application preferred
by the respondent No.1 in both these appeals (applicant No.2 in
Misc.C.A.No.856/2004) for grant of heirship certificate was allowed.
While challenge in First Appeals No.2773/2016 and No.3352/2017
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is to the order dated 2/3/2016, passed by the same Court, rejecting
the application (Civil M.A. No.258/2006) for grant of probate.
3. Facts necessary to decide these appeals are as follows :-
Mohammad Shameem Afandi died on 17.08.2003. He
was survived by his widow Billquis and daughter Nikhat. Both the
widow and the daughter of deceased Shameem filed application
(No.856/2004) for heirship certificate. In response to a
proclamation, inviting all persons who dispute the right of these
applicants, Mohd. Dawood Jameel Mirza (appellant in First Appeal
No.3354/2016) and Mohd. Rafat Afandi (appellant in First Appeal
No.2772/2016) offered objections. It is their contention that the
deceased and his wife Billquis had estranged relationship between
them. They, therefore, did not live together. Daughter Nikhat stayed
with her mother. As such, both the applicants had neither been living
with the deceased nor have they ever taken his care. The deceased
was a Cancer patient. The appellant - Mohd. Rafat Afandi (in F.A.
No.2772 of 2016 and F.A. No.3352 of 2016) is the real brother of the
deceased, while the appellant-Mohd. Dawood Jamil (in F.A.No.2773
of 2016 and F.A.No.3354 if 2016) is the son of the cousin sister of
the deceased. Both of them had taken care of the deceased. The
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deceased executed his last Will on 27.02.1998 bequeathing his
immovable properties in favour of the appellants and the daughter of
the deceased as well. The appellant - Mohd. Dawood Jamil s/o Mirza
Rashid Baig, (in F.A. No.2773 of 2016 and 3354 of 2017) preferred
application for grant of probate/letters of administration of the Will
executed by the deceased.
4. Pending the applications, the widow of the deceased
passed away. The appellants and the daughter of the deceased
produced oral and documentary evidence in both the applications.
The learned Judge, vide its two separate judgment and orders,
rejected the application for grant of probate and allowed the
application for heirship certificate. Both the judgment and orders
have been under challenge in these appeals.
5. Learned Advocates for the appellants would submit that
the learned Judge did not consider their objections in the right
perspective. The appellant (F.A. No.2772 of 2016), mother and two
paternal nephews of the deceased were also his (deceased) legal
heirs. The house property situated at Buddi Lane is self acquired
property of the appellant - Mohd. Rafat Afandi. Moreover, the
deceased also executed an oral gift-deed of one of the immovable
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properties in his favour. The memorandum of the oral gift was later
on executed on 07.10.2002. The agricultural land Gut No.114, at
Kannad, was the property of the father of the deceased. The
appellant (F.A.No.2773 of 2016) Mohd. Dawood Jamil s/o Mirza
Rashid Baig, was the adopted son of the deceased. The deceased,
therefore, brought him up. It is this appellant who took all the care
of the deceased during his last days. Since complicated questions
had been raised in a proceeding for grant of heirship certificate, the
learned Judge ought not to have allowed the application. According
to the learned Advocates, provisions of the Code of Civil Procedure,
applied for a proceeding for grant of heirship certificate. The learned
Judge ought to have framed the issues as decided the proceeding as
per the procedure provided for hearing of contested suit.
6. In a proceeding for grant of probate, the Will has been
duly proved. Both the attesting witnesses of the Will, were
examined. It is because of passage of time, one of the witnesses
could not give evidence consistent with the other evidence in the
case. The Will runs into three pages. Writings and endorsement on
the last page of the Will are of the officials of the office of Sub-
Registrar. They committed mistakes in recording the names of the
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attesting witnesses. The learned Judge should not have relied on the
record made available by the officials in the Registrar's office. The
original Will was lost. A certified copy thereof, was therefore
produced in evidence. The attesting witnesses cannot be supposed to
have photographic memory. The learned Advocates, therefore, urged
for allowing the appeals.
7. Shri A. D. Kasliwal, learned Advocate for the
respondent-Nikhat, daughter of the deceased would, on the other
hand, submit that the appellant Mohammad Rafat Afandi has
already filed suit (Regular Civil Suit No.198 of 2019) in the Court of
Civil Judge, Junior Division, at Kannad. The learned Judge, on
appreciation of the evidence in the matters, came to a perfect
conclusion. The heirship certificate has been granted in favour of the
daughter (next of kin) of the deceased. He took me through the
evidence of the attesting witnesses and the Will itself to ultimately
submit that the Will has not been duly proved. The learned
Advocate, therefore, urged for dismissal of the appeals.
8. Chapter I of the Bombay Regulation VIII of 1827 speaks
of Rules for the recognition of heirs, executors and Administrators
when there is a competent claimant.
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"1. Legal heir, etc., of person deceased competent to
represent him without recognition from court :
Whenever a person dies leaving property, whether
moveable or immovable, the heir or executor, or legal
administrator, may assume the management, or sue for
the recovery, of the property, in conformity with the law of
usage applicable to the disposal of the said property,
without making any previous application to the Court to
be formally recognized.
2. First. But if such recognition requested,
proclamation will be issued :
But if an heir, executor or administrator is desirous
of having his right formally recognized by the Court, for
the purpose of rendering it more safe for persons in
possession of, or indebted to, the estate to acknowledge
and deal with him, the Judge, on application, shall issue a
proclamation, in the form contained in Appendix A,
inviting all persons who dispute the right of the applicant
to appear in the Court within one month from the date of
the proclamation and enter their objections, and declaring
that, if no sufficient objection is offered, the Judge will
proceed to receive proof of the right of the applicant, and,
if satisfied, grant him a certificate of heirship,
executorship or administratorship.
Second. Publication of proclamation :
[Rep. Act XII of 1873.]
3. If no objection appears, recognition to be granted :
If, at the expiration of the time mentioned in
the proclamation, no sufficient objection has been made,
the Court shall forthwith receive such proof as may be
offered of the right of the person making the claim, and, if
satisfied, shall grant a certificate in the form contained in
Appendix B, declaring him the recognized heir, executor
or administrator of the deceased.
4. First : Objection appearing to be examined and
recognition given or refused accordingly :
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If, before the expiration of the time, any
objection is made to the right of the person claiming as
heir, executor or administrator, the Judge, on a day to be
fixed (of which at least eight days' previous notice shall be
given to the parties), shall summarily investigate the
grounds of the objections on the one hand, and of the
right claimed on the other, examining such witnesses or
other evidence as may be adduced by the parties, and
either grant or refuse a certificate, as the circumstances of
the case may require.
Second : If question is complicated or difficult, matter to
be left for adjudication:
But if from the evidence adduced, it appears
that the question at issue between the parties is of a
complicated or difficult nature, the Judge may suspend
proceedings in the application for a certificate until the
question has been tried by a regular suit instituted by one
of the parties.
5. Authenticity of wills and recognitions how certified :
Whenever an executor is formally recognised,
under the rule contained in section 4, the authenticity of
the will, if any, by which he is appointed, shall be proved,
and the certificate of executor ship shall be endorsed
thereon.
6. Wills and recognitions to be registered :
[Rep. Act. XII of 1873.]
7. First :Recognized heirs, etc., competent to manage
property :
An heir, executor or administrator, holding the
proper certificate, may do all acts and grant all deeds
competent to a legal heir, executor or administrator, and
may sue and obtain judgment in any Court in that
capacity.
Second : But recognition gives no title to property :
But, as the certificate confers no right to the
property, but only indicates the person who, for the time
being, is in the legal management thereof, the granting of
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such certificate shall not finally determine nor injure the
rights of any person; and the certificate shall be annulled
by the Zilla Court, upon proof that another person has a
preferable right.
Third : No relief from responsibility to claimants :
An heir, executor or administrator, holding a
certificate, shall be accountable for his acts done in that
capacity to all persons having an interest in the property,
in the same manner as if no certificate had been granted.
8. Refusal of a recognition no judgment against claim
of applicant :
The refusal of a certificate by the Judge shall
not finally determine the rights of the persons whose
application is refused, but it shall still be competent to
him to institute a suit for the purpose of establishing his
claim."
9. It is a settled legal position that based on the heirship
certificate simpliciter, the certificate holder cannot be said to have
acquired any right, title and interest in the estate of the deceased.
10. An heir/executor administrator, holding the proper
certificate may do all acts and grant all deeds competent to a legal
heir and may sue and obtain judgment in any Court in that capacity.
As such, person holding heirship certificate is no less than a trustee
of the property of the deceased. The certificate in no case grant the
certificate holder, any right, title and interest in the property of the
deceased. It is true that in view of Clause Second of Rule 4 of
Chapter I of the Bombay Regulations, if a question is complicated or
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difficult in nature, the Judge may suspend proceedings in the
application for certificate until the question has been tried by
regular suit instituted by one of the parties. The learned Judge, here,
considered the relationship of Nikhat with the deceased as a
daughter and exercised his discretion in granting the certificate in
her favour with the condition directing her to enter into a bond. In a
proceedings for grant of heirship certificate, no issues may be
framed. By virtue of Section 390 of the Indian Succession Act, 1925
(for short, 'the Act of 1925'), the provisions of Section 370, sub-
section (2), section 372, sub-section (1), clause (f) and sections 374,
375, 376, 377, 378, 379, 381, 383, 384, 387, 388 and 389 with
respect to certificates under this Part and applications therefor, and
of section 317 with respect to the exhibition of inventories and
accounts by executors and administrators, shall, so far as they can be
made applicable, apply to the proceedings for grant of heirship
certificate. An appeal against the judgment and order granting or
refusing to grant heirship certificate lies to the District Judge
(Section 384 of the Indian Succession Act, 1925). The appeals have
been filed way back in 2016. Appeal against judgment and order
granting or refusing to grant probate/letters of administration lies to
the High Court. Since the matters were connected with each other,
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this Court heard the appeals against the order granting heirship
certificate.
11. The dispute between the parties is over the family silver
left behind by the deceased. The claims are based on a Will, oral gift
and succession as well. It is, therefore, desirable to relegate the
parties to a remedy of substantive suit to have their right, title and
interest decided therein. Since the learned Judge has granted
heirship certificate in favour of the daughter of the deceased on
condition of her entering into a bond and since such a certificate
does not confer her any right, title and interest in any property of the
deceased, this Court is not inclined to interfere with the order
granting the heirship certificate.
12. PROBATE :-
The deceased was a Muslim. Part VI of the Act of 1925
speaks of testamentary succession. By virtue of Section 58, the
provisions of the said Part shall not apply to testamentary succession
to the property of a Mohammedan. Part VI is comprised of Chapter I
to Chapter XXIII. As such, Section 63, which is part of Chapter III of
Part VI has no application to Will executed by a Mohammedan.
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13. Although, 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 has claimed or has granted letters of administration with the
Will, Section 213 shall not apply in case of Wills made by a
Mohammedan. As such, for establishing a Will executed by a
Mohammedan, no probate or letter of administration is required to
be obtained. Moreover, in a proceeding for grant of probate, no
question of a title to the property bequeathed under the Will, can be
gone into. In view of this position of law, this Court do not propose
to decide the application for probate. Suffice it to say, there is prima
facie evidence to indicate that the deceased executed a registered
Will. All was not well between him on one hand and his wife and the
daughter on the other. It appears that about five immovable
properties have been comprised in the Will.
14. Both the attesting witnesses to the Will, have been
examined in proof thereof. Attesting witnesses are not expected to
know contents of the Will. The last page of the Will bears entries and
endorsements made by the officials from the office of Sub-Registrar
with which the Will was registered. Whatever mistakes, if any,
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committed by these officials may not be attributed to the executants
or the attesting witnesses of the Will. Be that as it may. Since the
provisions of Part VI of the Act of 1925 has no application to a Will
executed by a Mohammedan and no probate of letters of
administration is required to be obtained in respect of a Will of
Mohammedan, it is desirable to direct the parties to have their
respective claims settled/decided in a substantive suit. It would not
be out of place to mention that Chapter XIII of the Mohammedan
Law (14th Edition, Author : B.R. Verma) speaks of Wills. Section 184
thereof speaks of Will how to be made. Mohammedan is not entitled
to dispose of his property by Will in favour of a person who is not
heir in excess of one-third, subject to four exceptions contained in
Section 190 of the Mohammedan Law. Mohammedan who dies
intestate, his property inherited by sharers, residuaries and distant
kindred. Wife/widow gets 1/8th share where there is a son. Daughter
inherits ½ share. If there are more than one daughters, they take
2/3rd shares when there is no son. The reference to aforesaid legal
proposition is made only with a view to observe that a Will executed
by the deceased is required to be proved and acted upon in the light
of the provisions of the Mohammedan law and not the provisions of
Part VI and/or Section 213 of the Act of 1925.
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15. Needless to mention, the trial Court shall not be
influenced by the aforesaid observations. Suit, if any, filed by any of
the parties shall be decided on its own merits.
16. For the foregoing reasons, the appeals stand disposed of
in terms of the following order:
The parties to these appeals are at liberty to have their
claims decided in a substantive suit to be filed, if so advised.
The order granting heirship certificate in favour of the
daughter of the deceased is maintained. However, she shall not
create any right, title and third party interest in the property of
the deceased on the strength of the heirship certificate.
17. Pending civil applications are disposed of.
[ R. G. AVACHAT, J. ]
SMS
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