Mohd Asif vs The State & Anr
2010 Latest Caselaw 4471 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                                    Date of decision: 22.09.2010

+                                    TEST.CAS. 8/2010

       MOHD ASIF                                                          ..... Petitioner
                               Through       Mr. Sharad Anwar, Advocate

                      versus

       THE STATE & ANR                                                    ..... Respondents

                               Through       None

       CORAM:
       HON'BLE MR. JUSTICE S. RAVINDRA BHAT

1.     Whether the Reporters of local papers        Yes.
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?           Yes.

3.     Whether the judgment should be               Yes.
       reported in the Digest?


MR. JUSTICE S.RAVINDRA BHAT, J (OPEN COURT)

%

1. This probate appeal under Section 384 of the Indian Succession Act, 1925 is filed against

a judgment and order of the Learned Additional District Judge, Sh. Rajender Kumar Shastri

dated 03.10.2009, made in PC No. 99/2007. The appellant had approached the trial court for

probate in respect of the will of his mother late Smt. Naseem Begum, who died on 02.02.2006;

she had propounded a will on 04.03.2005 by which she bequeathed her entire estate to him. It

was contended that the will was valid and binding as it has been attested by two independent

witnesses and the testatrix was sound disposing state of mind.

2. The respondents, who are other heirs of the testatrix, objected to the proceedings firstly

TEST CASE 8/2010 Page 1 denying the will and secondly submitting that she was suffering from acute thyroid problem from

five years prior to her death. It was also argued that the testatrix, could not, having due regard to

the personal law applicable to the parties i.e. Sunni Law, bequeath her entire estate to the

Petitioner/Appellant (her son). The respondents had relied upon various authorities including

Noorunissa @ Pichamma Vs. Rahaman Bi (2001) 3 MLJ 141; B.R. Verma's Commentaries on

Mohammdan Law, 8th Editon 2002; Abdul Rehman Vs. Uthumansa, AIR 1925, Mad.997 and also

other rulings.

3. In Abdul Rehman's case, the Court summarised the law as follows:-

"Under Sunni Law, a testamentary disposition by Mussulman is invalid in so far as it purports to dispose of more than one third of the testator's estate or to benefit any of his heirs unless the heirs whose rights are affected by such disposition consent to it after his death expressly or impliedly or by passive acquiescence. Consent during life is not enough under Sunni Law."

Similarly, in Noorunissa @ Pichamma Vs. Rahaman Bi, which was a subsequent

decision of 2001, the Court indicated the applicable principles as follows:-

"The principle laid down with regard to bequeathing of property of a Mohammedan would clearly go to show that a Mohammedan cannot bequeath more than one third of his property and even with regard to that one third of his property and even with regard to that one third he cannot bequeath it to his heirs. If the bequest is to an heir it can bee validated by the consent of all the heirs after the death of testator. It is also clear that bequest in excess of one third of estate cannot take effect unless such bequeath is concerned by heirs after the death of the testator."

4. The above discussion would indicate that those governed by Mohammedan Law cannot

bequeath more than 1/3rd of their entire estate; even in respect of such 1/3rd share that an

individual can bequeath, there has to be consent by the other heirs who are excluded from the

estate. In this case concededly, the Appellant was able to establish that the consent of many of

the testatrix's heirs had been given, but the record also showed that the consent of the fourth

TEST CASE 8/2010 Page 2 respondent was not forthcoming.

5. In the circumstances, the Court is of the opinion that the existing position of law being so,

a probate or Administration under the Indian Succession Act could not have been granted as

claimed. The judgment under appeal is, therefore, based on sound legal principles. The appeal,

therefore, cannot succeed.

6. Learned counsel for the appellant submitted that other heirs had received consideration

and furnished 'No Objection' in respect of the suit property and that liberty may be granted to

initiate such proceedings in that regard. The appellant is at liberty to initiate such proceedings as

are admissible in law.

7. The appeal is, therefore, dismissed in the above terms. In the circumstances, there should

be no order as to costs.

                                                                            S. RAVINDRA BHAT
                                                                                      (JUDGE)
SEPTEMBER 22, 2010
rs




TEST CASE 8/2010                                                                              Page 3