Bombay High Court

Sunil Vithalrao Shinde vs Ali Shan Noor Mohammad And Ors on 17 April, 2025

2025:BHC-AUG:11090
                                            (1)                FA-214-2024 & ORS..odt



                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                BENCH AT AURANGABAD
                              FIRST APPEAL NO.214 OF 2024
                                         AND
                              FIRST APPEAL NO.215 OF 2024
                                         AND
                              FIRST APPEAL NO.722 OF 2025

               Sunil s/o. Vitthal Shinde,
               Age: 55 years, Occ: Agril,
               R/o Sindon, Tq. & Dist. Aurangabad,
               At present Renukanagar, Garkhed Parisar
               Aurangabad                                      ..Appellant
                                                               (Orig. Applicant)
                           Versus

               1.     Ali Shan S/o. Noor Mohammad Shaikh,
                      Age: 55 years Occ: Agril,
                      R/o. Chitegaon, Tq. Paithan, Dist. Aurangabad

               2.     Bebe Wd/o Noor Mohammad Shaikh,
                      Age: 78 years, Occ: Nil.
                      R/o. As above.

               3.     Imtiyaz Bee @/o Peer Mohammad Shaikh,
                      Age: 59 years Occ: Household,
                      R/o. Shindon Tq/ & Dist. Aurangabad.

               4.     Rabiyabee W/o. Vazir Shaikh,
                      Age: 52 years, Occ: Household,
                      R/o. As above.

               5.     Hamsheerabee W/o Shaikh Chand,
                      Age: 50 years, Occ: Household,
                      R/o. Garkheda, Aurangabad.

               6.     Shamshadbee W/o Latif Sayed,
                      Age: 47 years, Occ: Household,
                      R/o. Badgaon, Tq. & Dist. Aurangabad.

               7.     Lailabee Shamat Shaikh,
                      Age: 42 years, Occ; Household,
                      R/o. Shindon Tq. and Dist. Aurangabad.

               8.     The State of Maharashtra
                      The District Collector, Aurangabad             ..Respondents
                                                   (R.No.1 to 7 are Orig. R. Nos.2
                              (2)                FA-214-2024 & ORS..odt



                                    to 8 and R.No.8 is Ori. R.No.1.)
                                  ...
Mr. P. F. Patni, Advocate for the Appellant.
Mr. Mohsin Khan, Advocate for Respondent Nos.1 to 7.
Mr. V. S. Badakh, AGP for Respondent No.8.
                                 ...
                         CORAM : S. G. CHAPALGAONKAR, J.

RESERVED ON   :- 18th MARCH, 2025.
PRONOUNCED ON :- 17th APRIL, 2025.

JUDGMENT:

1. All proceedings are arising out of common order dated

30.09.2023 passed by Civil Judge Senior Division, Aurangabad.

For better understanding, the details are mentioned in tabular

form:

First Appeal Civil M.A. No. Remark No. FA/214/2024 294/2022 For issuance of Probate and Letter of Administration under Section 299 of the Indian Succession Act by present appellant FA/215/2024 293/2024 For issuance of probate and letter of administration under section 299 of the indian succession act in respect of amount and FD kept in bank by present appellant FA/722/2025 2151/2021 For issuance of heirship certificate in respect of immovable properties and succession certificate in respect of deposits by Alishan and others.

2. All three proceedings were taken up for common hearing and

disposal before Civil Judge Senior Division at Aurangabad, who

allowed Civil M.A. No.2151/2021 and directed issuance of heirship

certificate in name of Alishan and others in respect of immovable

properties and succession certificate in respect of Alishan and (3) FA-214-2024 & ORS..odt

others in respect of Fixed Deposits at Maharashtra Gramin Bank,

whereas rejected Civil M.A. Nos.293/2023 and 294/2023.

3. The facts giving rise to present proceedings are summarized

as under:

One Tajuddin Noor Mohammad Shaikh was scholar of

religious scriptures of Hindu religion and renowned preacher

(Kirtankar). Although he was Muslim by birth, he had developed

interest in Hindu scriptures since his young age and devoted in

social and religious work in the interest of community. The

appellant-Sunil Vitthal Shinde claims that Tajuddin Shaikh was

residing with him as family member. Initially he came in contact

with appellant's father and became family member. The appellant

since childhood devoted himself in assisting Tajuddin Shaikh.

During the lifetime Tajuddin Shaikh purchased some properties

out of his income and had maintained certain Fixed Deposits. He

executed two Will dated 11.12.2013 and 28.09.2020 and

bequeathed his property to appellant. Tajuddin Shaikh died on

27.09.2021 due to heart attack. After demise of Tajuddin Shaikh,

Appasaheb Admane handed over appellant both Will. Accordingly,

he claims for grant of Probate in respect of Will or Letter of

Administration as per Will.

4. It is contention of appellant that Alishan and others have no

right to seek heirship or succession certificate as Tajuddin Shaikh (4) FA-214-2024 & ORS..odt

has executed Will and bequeathed his interest in movable and

immovable properties in his favour.

5. Per contra, Alishan and others contested claim of Sunil

Shinde contending that Tajuddin Shaikh never renounced Islam.

During his lifetime, he maintained his family from his income. His

last rites are performed as per Muslim rituals and dome is

constructed near his house, which is looked and managed by

Alishan and others. They denied execution of Will and contended

that appellant has created false and fabricated documents with

intention to grab properties left behind by Tajuddin Shaikh.

6. The Trial Court framed issues, recorded evidence of parties

and rejected claim of appellant highlighting certain doubtful

circumstances as regards to Will relied by appellant and passed

impugned order.

7. Mr. Patni, learned Advocate appearing for the appellant

vehemently contends that late Tajuddin Shaikh never resided with

his family. At young age of about 18 years, he left home and

resided in shelter of appellant's family. The appellants from his

young age, remained in service of Tajuddin Shaikh. Hence, he

executed his Will dated 11.12.2013 bequeathing his properties in

the name of appellant. The Will is duly notarized and signed by

two witnesses. Second Will dated 28.09.2020 does not conflict with (5) FA-214-2024 & ORS..odt

first Will and reiterates intention of Tajuddin Shaikh to bequeath

properties purchased by him in favour of appellant. There cannot

be dispute about valid execution of Will. The attesting witnesses

are examined, whose testimony cannot be doubted. The physical

and mental condition of Tajuddin Shaikh at the time of execution of

Will is admitted to be sound. The disposition of property under

Will needs to be respected. The circumstances considered against

grant of Probate / Letter of Administration in favour of appellant

does not exist. Mr. Patni in support of his contentions relies upon

observations of Supreme Court of India in case of Smt. Indu Bala

Bose and Others Vs. Manindra Chandra Bose and Another 1,

observations Allahabad High Court in case of Smt. Hadi Begum

(Deceased by LR) Vs. Smt. Ruqqiya Sultana 2 and lastly

observations of this Court in case of Damodar Kashinath

Rasane Vs. Smt. Shahajadibi and Others3.

8. Per contra, Mr. Khan, learned Advocate appearing for the

respondent nos.1 to 7 submits that apparently, perusal of both Will

would show that those are typewritten at a time. The contents are

word to word same. The property which was not purchased or

possessed by Tajuddin Shaikh on the date of alleged execution of

first Will is made part of Will. Similarly, land which is transferred

in the name of brother is shown in Will. The Stamp Paper on

1 AIR 1982 SC 133.

2 1984 ALL.L.J. 408.

3 AIR 1989 BOMBAY 1.

(6) FA-214-2024 & ORS..odt

which alleged Will is typewritten is purchased by appellant. As per

Muslim law, Will cannot be valid beyond 1/3 rd of the property

possessed by testator. On this count also, Will cannot be accepted

to be valid. The appellant failed to clear suspicious circumstances.

Therefore, he urges to dismiss the Appeals.

9. Having considered submissions advanced and on perusal of

record, apparently claim of appellant for issuance of Probate or

Letter of Administration has been rejected on following counts:

(i) There is no explanation for purchase of Stamp Paper in the

name of appellant.

(ii) As per Muslim law bequest beyond 1/3rd of total property is

impermissible.

(iii) The Gut No.177 is given to respondents by gift, however,

same is made part of bequest under Will.

(iv) The property purchased in the year 2014 is made part of

Will alleged to be executed in the year 2013.

10. Undisputedly, Tajuddin Shaikh was Muslim by birth.

Although appellant contends that Tajuddin Shaikh professed

Hindu religion, there is nothing to show his conversion to

Hinduism. On the other hand, witnesseses of appellant namely

Appasaheb and Rajendra gave vital admissions, which depicts that

Tajuddin Shaikh never renounced Muslim religion. The findings

recorded by Trial Court on this issue does not require interference.

(7) FA-214-2024 & ORS..odt

11. Section 63 of the Indian Succession Act provides for mode

and manner of attestation of Will. The onus to prove Will is on

propounder. The propounder has to establish execution of Will and

remove suspicious circumstances surrounding execution of Will. It

is also necessary to establish the testamentary capacity and

signature of testator. The term suspicious circumstances has been

explained by Supreme Court of India in case of Shashi Kumar

Banerjee & Ors. Vs. Subodh Kumar Banerjee & Ors.4. The

suspicious circumstances may be as to genuineness of signature of

testator, condition of testator's mind, the dispositions made in the

Will being unnatural, improbable or unfair in the light of relevant

circumstances, or there might be other indications in the Will to

show that testator's mind was not free. When circumstances are

not normal or normally expected of a normal person, it would be

termed as suspicious circumstances. Upon discharge of such onus,

the Court required to decide issue as to genuineness and due

execution of Will. The Probate Court does not decide any question

of title or existence of property itself.

12. In light of aforesaid parameters of law, it is to be find out if

appellant had discharged his burden to establish execution of Will

free from suspicious circumstances. The witness Appasaheb

Admane deposed that Tajuddin Shaikh executed two Will dated

4 AIR 1964 SC 529.

                              (8)                 FA-214-2024 & ORS..odt



11.12.2013 and 28.09.2020 in his presence.        The first will was

notarized before Advocate Ankush Jadhav and second Will was

notarized before Ulhas Kadam, which is singed by Tajuddin Shaikh

and then by both witnesses. The Will was kept in his custody.

After death of Tajuddin Shaikh, he informed appellant about

execution of Will and handed over original to him.

13. The respondents have objected evidence adduced by

appellant. Firstly, it is contended that Stamp Paper was not

purchased by Tajuddin Shaikh, but it was by appellant. Perusal of

first Will shows that stamp was purchased for appellant by

Tajuddin Shaikh. There appears signature of Tajuddin Shaikh

below name of purchaser. The Trial Court observed that it was

purchased by appellant. On careful reading of document,

contention of Mr. Patni, learned Advocate that this was purchased

by Tajuddin Shaikh for appellant appears to be more probable and

acceptable. The findings of Trial Court on this aspect appears to be

inconsistent to record or based on misreading of documents.

14. The Trial Court relied upon second suspicious circumstance

as to genuineness of Will that Tajuddin Shaikh was not entitled to

bequest in any case beyond 1/3rd of his estate as per Muslim law.

The Trial Court rightly relied upon Chapter 18 of Mohammedan

Law (Mulla), which suggests that power of Muslim to bequest has

been limited or restricted in two ways, namely, he cannot Will for (9) FA-214-2024 & ORS..odt

more than 1/3rd of his estate, and secondly, he cannot bequest to an

heir validly, unless some conditions are fulfilled. The bequest to an

heir is not valid unless the other heirs consent to the bequest after

death of the testator. If a Will, bequest, limited one third to a

stranger, it would be perfectly valid, binding on heirs and lawful,

otherwise, it would be invalid, without the consent of heirs. In

light of aforesaid provision, even it is assumed that bequest beyond

1/3rd was invalid, there is no difficulty in accepting Will as valid to

the extent of permissible limit under Mohammedan Law. Mr.

Patni has rightly relied upon observations of Division Bench of this

Court in case of Damodar Kashinath Rasane (supra) in this

regard, particularly observations in paragraph no.17:

"17. The second question which, no doubt, has been raised on behalf of the defendants, for the first time, in this Second Appeal can also be disposed of by us since it is a question of law and the matter is at large before us on all point of law. Ads pointed out earlier while summarizing the position of law, a widow's share in her husband's property is limited only to one-fourth of his estate, when there are no other blood-relations of the husband left/ This will also mean that when the sole heir left is the widow and the bequest of the entire property is made in favour of a stranger the bequest will have to be upheld to the extent of the widow. There is no reason why such a consequence should not follow in law for ever where the consent of the heir is needed to validate the bequest in excess of one-third that consent is required so that the heir or heirs concerned are not deprived of their rightful share in the estate. That righted share in the estate in the present case being only of the widow and limited only to one fourth of the unbequeathable estate of the testator, that is 2/3rd of the estate, the plaintiff is entitled to only one-forth of the two-thirds of the said estate. In other words she is entitled only to one-sixth of the entire estate. This being the case, the suit be decreed only to the extent of one-sixth of the land in dispute."

(10) FA-214-2024 & ORS..odt

15. The next contention doubting genuineness of Will is that land

Gut No.177 was given by Tajudding Shaikh to his brother Alishan.

Eventually, mutation entry was recorded. The appellant as well as

his witness Rajendra admitted mutation in favour of Alishan,

which depicts that 62R land was allotted to him under partition

deed and name of Tajuddin Shaikh was removed. Second Will has

been executed on 28.09.2020. Prior to that mutation Entry

No.2274 dated 01.04.2020 was certified as to partition and transfer

of land in favour of Alishan. It is accordingly submitted that once

such a transfer was effected, a Will executed at a later point in

time would not have reference of its bequeathal to the appellant.

Perusal of document, particularly second Will dated 28.09.2020

depicts that reference as regards to land Gut No.177 is made

stating that suit property is part of earlier Will dated 11.12.2013

and then it makes reference of further estate to be bequeathed

under Will. It is true that, in said Will there is no reference of

gifting land Gut No.177 to Alishan. In natural course, Tajuddin

Shaikh would have explained aforesaid fact. This circumstance is

not properly clarified by appellant.

16. Last and most important objection is that Will dated

11.12.2013 makes reference of land Gut No.2 to the extent of 40R.

The certified copy of sale deed dated 12.05.2014 depicts that

Tajudding Shaikh became owner of land after execution of Will (11) FA-214-2024 & ORS..odt

dated 11.12.2013. No explanation is coming forward from

appellant as to how in the Will executed in the year 2013, there is

reference of land purchased after six months of execution of Will.

Mr. Patni, learned Advocate endeavours to explain that there was

agreement for purchase of land and Tajuddin Shaikh was aware

about its acquisition, hence reference is made. However, this

explanation are not supported by documentary or oral evidence.

The appellant never stated in his evidence that such agreement

existed prior to execution of Will. The vendors or witnesses of such

transaction is not examined to clear aforesaid circumstances. This

Court, therefore, holds that appellant failed to remove suspicious

circumstances as regards to mention of land Gut No.2 in Will dated

11.12.2013.

17. Mr. Khan, learned Advocate appearing for respondents

points out that Will of 2013 and 2020 are word to word same and