[Cites 3, Cited by 0]
Bombay High Court
Rabiya Mohammed Iqbal Khatri ... vs Mohammed Yusuf Gulam Khatri ... on 25 March, 2026
2026:BHC-OS:7263
IA 3619-2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
INTERIM APPLICATION NO. 3619 OF 2025
IN/WITH
CAVEAT NO. 405 OF 2025
[CAVEAT (L) NO. 17978 OF 2024]
IN
TESTAMENTARY PETITION NO. 3197 OF 2019
Late Gulam Hussain Abdul Karim Khatri ... Deceased.
And
Mohammed Yusuf Gulam Hussain Khatri ... Applicant/Petitioner.
Versus
Rabiya Mohammed Iqbal Khatri ... Caveator.
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Mr Arshad Shaikh, Senior Advocate a/w Mr Anuj Jhaveri, Ms Vinsha Acharya,
Mr Ranjit Agashe and Mr Mihir Modi for the Applicant-Petitioner.
Mr Zain Shroff a/w. Ms Shaista Pathan and Mr Dev Mistry i/by YNA Legal LLP
for the Defendant in TS/81/2022 and for the Caveator in CTS/405/2023.
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Coram : Sharmila U. Deshmukh, J.
Reserved on : March 09, 2026
Pronounced on : March 25, 2026
ORDER :
1. Interim Application has been preferred seeking dismissal of the
Caveat No.405 of 2025 filed in Testamentary Petition No.3197 of
2019. The Testamentary Petition is filed by present Applicant seeking
grant of Letters of Administration in respect of estate of the
deceased Gulam Hussain Abdul Karim Khatri, Sunni Muslim who
expired on 30th July, 2019. The Petition pleads that the deceased died
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intestate and had left him surviving as his heirs and next of kin
according to the applicable Mohammedan Law, the widow of the
deceased and three sons including the present Applicant and the
fourth son who had expired on 17th February, 2002. The Petitioner
claimed to be entitled to 7/24th in the estate left by the deceased.
2. The grant is opposed by the wife of the pre-deceased son of the
deceased by setting up oral Will of the deceased. In the affidavit in
support of the caveat, it is contended that the Applicant herein in
furtherance of oral Will of the deceased has mutated the name of the
Caveatrix and her daughter in revenue records. It is contended that
upon the death of the Caveatrix's husband in the year 2002, the
deceased told the Caveatrix that she and her daughters have an equal
share as other sons of the deceased.
3. It is stated that on 29th March, 2002, after the 40th day of the
demise of the husband of the Caveatrix, there was meeting held in
which the parents and brothers of the Caveatrix and Gulam Mustafa
Khatri and his wife were present. The deceased made an oral Will in
the meeting bequeathing one share of his estate to the Caveatrix and
his daughters which was 1/4th of his estate i.e. 25% of his estate.
4. It is contended that the deceased prior to his demise in
presence of his three sons, the Caveatrix and his eldest grandson
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reiterated the oral Will and that it was his desire that his estate be
divided into four parts and be bequeathed to his three sons and family
of his predeceased son. The deceased stated that it is his desire that
after his demise, five equal shares be made from his estate giving
20% each to the sons, 20% to the Caveatrix and 20% to his grandson.
As per the oral Will, the widow of the deceased was to have right over
everybody's share and each shareholder of the estate ought to
contribute towards expenses of his wife till her demise.
5. It was proposed by the Applicant that 20% share belonging to
the Caveatrix and her daughters shall be kept in the name of widow of
the deceased and upon her demise, the same will devolve completely
upon them. Accordingly an oral family arrangement was agreed upon.
wherein, it was decided that the estate would be divided between the
three surviving sons, the widow of deceased and the grandson with
20% share each. It is stated that the Petitioner proposed that the
share of the grandson i.e. Asif Gulam Mustafa Khatri should be
transferred in the name of Gulam Mustafa Khatri since the showing of
one grandson on paper was creating complication and accordingly
another partnership deed was executed wherein the share of the
grandson was transferred in the name of Gulam Mustafa Khatri.
6. The affidavit pleads that the Caveatrix was informed by her
brother-in-law Gulam Mustafa Khatri that Applicant has fraudulently
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claimed that the deceased died intestate and his estate be divided as
per the Mohammedan Law and that the Caveatrix would not be
therefore entitled to any share in his estate. The existence of the oral
Will has been suppressed by the Petitioner by claiming that the
deceased had died intestate.
7. In the application seeking dismissal of the caveat it is stated
that in the caveat filed by the other brother-Gulam Mustafa Khatri,
there is no mention about the oral Will. Similarly, the affidavit of the
widow of the deceased denies that any such meeting has taken place
and states that there is no oral Will of the deceased. It is further
pleaded that as per the succession law governing the deceased, since
the husband of the Caveatrix had predeceased the deceased, there is
complete exclusion of his legal heirs including the present Caveatrix.
8. It is pleaded that there are varying stands taken in the Affidavit
from claiming bequest of 1/4th share in the estate to 1/5th share with
the grandson getting a share and the proposal that Caveatrix's 1/5th
share will be transferred in name of widow of deceased. It is pleaded
that none of these versions is put forth by the widow of the deceased
or by the other brother-Caveator. It is pleaded that the alleged oral
Will is ex facie illegal as Mohammedan Law prohibits bequest of the
entire estate of the testator. The names of the Caveatrix and her
daughters were added in 7/12 extracts on account of being the legal
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heirs of the deceased son Mohammed Iqbal Khatri. The partnership
deed mentioned by the Caveatrix does not even mention her name as
partner. The Caveat is required to be dismissed as the Caveatrix has no
caveatable interest in the estate of the deceased as per Mohammedan
Law governing the deceased.
9. Mr. Shaikh, learned Senior Advocate appearing for the Applicant
submits that the Caveatrix has no caveatable interest as per the
Mohammedan Law as the right of inheritance is available only to the
surviving heirs. He submits that the oral Will put up by the Caveatrix is
no Will as the testator could not have bequeathed his entire estate.
He submits that under Mohammedan Law, partition is possible
provided there is consent by all heirs. He submits that the Caveatrix
claims that the oral Will was made in presence of Gulam Mustafa
Khatri, however, in the Caveat filed by Gulam Khatri, there is no
mention of oral Will. He submits that the division in five shares of the
estate would amount to bequest of entire estate of the deceased. He
submits that varying stands have been taken by the Caveatrix as
regards the share under the oral Will, the division of estate and
partnership deed. He submits that the case of Caveatrix about
transfer of share of Asif to Gulam Mustafa Khatrai by reason of
complication by showing name of grandson on paper is unsustainable
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as she has put up a oral Will. He submit that the oral Will set up
by the Caveatrix is ex facie suspicious as the widow has not been
bequeathed any property under the oral Will. In support, he
relies upon the following decisions:
(i) Krishna Kumar Birla vs. Rajendra Singh Lodha and
Ors.1
(ii) Mansoor Saheb (D) and Ors. vs. Salima (D) by LRs.
and Ors.2
(iii) Smt. Ashabi vs. Smt. Faziyabi and Ors.3
(iv) Abdul Bari Khan and Anr. vs. Nasir Ahmad Khan
and Ors.4
10. Per contra, Mr. Shroff, learned counsel appearing for the
Respondent submits that the deceased acted on his oral Will as during
his lifetime he had made provision for the Caveatrix and her
daughters, which has not been disputed by the Applicant. He points
out the partnership deed annexed to the application which shows 20%
share of the widow and other sons of the deceased except Gulam
Khatri who has 40% share in the partnership which is in consonance
with the case of the Caveatrix that share of the grandson was
transferred to Gulam Khatri.
11. He submits that the Caveatrix has caveatable interest by virtue
of two oral Wills, one in the year 2002 under which the deceased
1 (2008) 4 SCC 300
2 2024 DGLS (SC) 1297
3 ILR 2004 KAR 3599
4 AIR 1933 Oudh 142
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bequeathed 25% out of 33% of his estate, and, the second oral Will
before his demise which was acted upon as family arrangement as is
evident from the partnership deed. He submits that the Applicant has
admitted that the deceased during his lifetime had transferred certain
properties to the Caveatrix which is in furtherance of oral family
arrangement and the Applicant is estopped from claiming otherwise.
12. Rival contentions now fall for determination:
13. The grant is opposed by the widow of pre-deceased son of the
deceased. The personal law governing the parties is the Mahomedan
Law applicable to Sunni Muslims. Mulla in the 24 th Edition of Principles
of Mahomedan Law has elucidated in Paragraph 53 that according to
Sunni law the expectant right of an heir - apparent cannot pass by
succession to his heir, nor can it pass by bequest to a legatee under
the Will. If any of the children of a man dies before the opening of the
succession of his estate, leaving children behind, these heirs are
entirely excluded from inheritance. Paragraph 116 states that a Will
may be made either verbally or in writing but in either case the
intention of the testator to make a Will must be clear and explicit.
Paragraph 118 states that a Muslim cannot, by a Will, dispose of more
than a third of the surplus of his estate. Bequests in excess of the
legal third cannot take effect, unless, the heirs consent thereto after
the death of the testator.
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14. Paragraph 119 states that if the bequests exceed the legal third
and the heirs refuse their consent, under the Sunni law, the bequests
abate ratably. Paragraph 130 states that a bequest to a person is
revoked by another bequest in a subsequent Will of the same
property to another person.
15. Under the Mohammedan Law, the widow of pre-deceased son
is not entitled to any share in the estate of the deceased upon
intestacy, which position is undisputed. The Caveatrix claims
caveatable interest by setting up two oral Wills of the deceased, the
first oral Will by the deceased on 29th March, 2002 bequeathing 25%
i.e. 1/3rd of his estate in favour of the Caveatrix and her daughters.
The first oral Will is claimed to have been made in presence of the
Caveatrix's family members and brother in law Gulam Mustafa Khatri.
Though caveat has been filed in the testamentary proceedings by
Gulam Mustafa Khatri, there is no contention by Gulam Khatri in the
caveat that the deceased had made any oral Will. The 2 nd oral Will is
claimed to have been made by the deceased prior to his death dividing
his estate in five parts including his grandson in proportion of 20%
each leaving out the widow of the deceased and stating that each
share holder shall contribute towards expenses of the widow till her
demise.
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16. The 2nd oral Will set up by the Caveatrix would revoke the
bequest in the earlier Will. It is claimed that by the 2 nd oral Will, the
deceased has bequeathed his entire estate in favour of the legatees
i.e. the three sons, the Caveatrix and the grandson in proportion of
20% each constituting bequest of 100% of the estate.
17. The Muslim law of inheritance does not permit a Muslim to
bequeath more than 1/3rd of his estate and in event of such bequest,
it is mandatory to obtain consent from all legal heirs. The Hon'ble
Apex Court in Shehammal vs Hasan Khani Rawther and Ors reported
in 2011(4) CTC 790 has reiterated the principles of Mohammedan
Law as under:
"24. ... .... .... Paragraph 118 of Mulla's "Principles of Mohammedan
Law" embodies the concept of the limit of testamentary power by a
Mohammedan. It records that a Mohammedan cannot by Will
dispose of more than a third of the surplus of his estate after
payment of funeral expenses and debts. Bequests in excess of one-
third cannot take effect unless the heirs consent thereto after the
death of the testator. The said principle of testamentary disposition
of property has been the subject matter of various decisions
rendered by this Court from time to time and it has been
consistently stated and reaffirmed that a testamentary disposition
by a Mohammedan is binding upon the heirs if the heirs consent to
the disposition of the entire property and such consent could either
be express or implied. Thus, a Mohammedan may also make a
disposition of his entire property if all the heirs signified their
consent to the same. In other words, the general principle that a
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Mohammedan cannot by Will dispose of more than a third of his
estate after payment of funeral expenses and debts is capable of
being avoided by the consent of all the heirs. In effect, the same
also amounts to a right of relinquishment of future inheritance
which is on the one hand forbidden and on the other accepted in the
case of testamentary disposition."
18. The case of Caveatrix is that the desire of the deceased to
bequeath the property in favor of Caveatrix manifested in form of
maintenance by the deceased of the Caveatrix and her daughters. It is
claimed that in furtherance of the oral Will, there was family
arrangement under which it was agreed that share of 20% of
Caveatrix and her daughters should be kept in name of widow of the
deceased and and thereafter there was another understanding that
share of the grandson be transferred to Gulam Mustafa Khatri and
accordingly partner ship deed was executed.
19. The oral Will takes effect upon the death of the testator and
there cannot be any assumption that as the deceased took care of
Caveatrix and her daughters, the same was manifestation of intention
to bequeath estate to the Caveatrix. The Affidavit in support of the
Caveat does not give any details of estate of the deceased in which
the Caveatrix claims 20% as per the 2 nd oral Will. It is not
demonstrated that the bequest in favour of Caveatrix was to the
extent of 1/3rd share of the estate of deceased. On the contrary the
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assertion is that the entire estate is divided in five parts. There is not
a single assertion that the bequest in excess of 1/3rd of estate of
deceased was consented by the other legal heirs. The pleading in the
Affidavit in support of Caveat swings between two oral Wills of the
deceased to family arrangements between the parties in order to
justify that pursuant to the family arrangement, the bequest in faour
of the Caveatrix was transferred to widow of the deceased.
20. Though submission canvassed is that the bequest was to extent
of 20% i.e. 1/3rd of estate, to substantiate the said submission, it was
necessary to plead and produce material to demonstrate the extent
of estate of the deceased and that the bequest to the Caveatrix was
to the extent of 1/3rd estate of deceased. Sans any pleadings
detailing the estate of the deceased, it is difficult to accept the
contention about bequest being within the restricted 1/3rd.
21. The grant can be opposed by setting up Will of the deceased,
however, the Affidavit takes varying stands and there is no clarity as
to whether the Caveatrix opposes the grant under the oral Will or
under the family arrangement. Any claim in the right title or interest
in the estate of the deceased under the family arrangements is an
issue to be adjudicated in the civil courts and not in testamentary
jurisdiction.
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22. The submissions canvassed by Mr. Shroff on the partnership
deed faintly borders on the consent of the legal heirs by reason of the
constitution of the partnership between the parties in which except
Gulam Mustafa Khatri others have 20% share. The partnership firm
has been constituted in August, 2019 i.e. after the death of the
deceased and has commenced its business from August, 2019. The
Caveatrix is not a partner in the partnership firm which has been
constituted amongst the sons of the deceased and the widow of the
deceased. It cannot be comprehended as to how the constitution of
the partnership firm would tantamount to consent of the heirs to the
bequest in excess of 1/3rd estate of the deceased. The partnership
deed does not mention about any asset being brought in the
partnership by the partners which could have been termed as estate
of the deceased. There is no validation by the legal heirs of bequest of
more than 1/3rd of estate of the deceased.
23. In the case of Krishna Kumar Birla vs. Rajendra Singh Lodha
and others, (supra) the Apex Court had culled out the proposition of
law to be applied for determining the caveatable interest in paragraph
86 of the judgment as under:
"86. The propositions of law which in our considered view may be
applied in a case of this nature :
(i) To sustain a caveat, a caveatable interest must be shown.
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(ii) The test required to be applied is: Does the claim of grant of
probate prejudice his right because it defeats some other line of
succession in terms whereof the caveator asserted his right?
(iii) It is a fundamental nature of a probate proceeding that
whatever would be the interest of the testator, the same must be
accepted and the rules laid down therein must be followed. The
logical corollary whereof would be that any person questioning the
existence of title in respect of the estate or capacity of the testator
to dispose of the property by will on ground outside the law of
succession would be a stranger to the probate proceeding inasmuch
as none of such rights can effectively by adjudicated therein."
24. The objection that are germane in a testamentary petition are
those that concern the issuance of grant. The opposition must make
out cogent ground for opposing the grant. The deceased expired on
30th July, 2019 and there is no justification for inaction to propound
the purported oral Will of the deceased. In the present case, the
Caveatrix claims under an oral Will, which is invalid as it bequeaths
more than 1/3rd share in the estate of the deceased. There is no
single assertion or material to demonstrate the estate of the
deceased to consider whether the bequests can be reduced rateably.
The Caveatrix has taken the partnership deed and has reverse
engineered the shares to claim family arrangements and oral Will. The
oral Will set up by the caveatrix is suspicious as the widow of deceased
has denied any such oral Will. The caveat filed by Gulam Mustafa
Khatri, the brother of the Applicant in whose presence the oral Will is
claimed to have been made, makes no mention about the oral Will.
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The Caveatrix therefore has no caveatable interest to oppose the
grant of Letters of Administration.
25. In light of the above, the Application succeeds. Caveat No.405
of 2025 stands dismissed. The testamentary suit is reconverted into
testamentary petition. The Petition to proceed for grant.
[Sharmila U. Deshmukh, J.]
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Signed by: Sanjay A. Mandawgad
Designation: PA To Honourable Judge
Date: 25/03/2026 20:26:23
