Iqbal Amiri vs The State & Ors
2016 Latest Caselaw 2654 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          TEST. CAS. NO.17/2011
%                                                            5th April, 2016

IQBAL AMIRI                                                  ..... Petitioner

                           Through:      Mr. Nishant Menon, Ms. Kavita Sarin and
                                         Mr. Shafiq Ahmed, Advocates.


                           versus

THE STATE & ORS                                              ..... Respondents

                           Through:      Mr. Ashish, Advocate for R-2, 3, 4 & 5.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?           YES


VALMIKI J. MEHTA, J (ORAL)

1.            This petition for probate is filed by the petitioner/son/Sh. Iqbal Amiri

seeking probate of the Will dated 12.1.2007 of late father Sh. Mohammad Hussain

Amiri who was a Sunni Muslim. Sh. Mohammad Hussain Amiri expired on

9.7.2007 leaving behind only one immovable property being Flat No.10-C DDA

Flats, Sarai Juliana, Second Floor, New Delhi.


2.            On the death of Sh. Mohammad Hussain Amiri on 9.7.2007, he left

behind five legal heirs with petitioner as a son, the widow Smt. Razia Amiri and

his three daughters namely Smt. Shahnaz Amiri, Smt. Mumtaz Amiri and Smt.

Rukhsana Amiri. All the three daughters and the widow have filed their no

objection affidavits in the Court and are represented through counsel who affirms

Test. Cas. No.17/2011                                                           Page 1 of 3
 the no objections of the legal heirs to the Will of late Sh. Mohammad Hussain

Amiri.


3.            This case is coming up for arguments after petitioner has led evidence

of the attesting witness namely Sh. Umesh Jagtiani. Sh. Umesh Jagtiani has

deposed that he signed as an attesting witness to the Will dated 12.1.2007 of Sh.

Mohammad Hussain Amiri and he has seen the executant sign and execute the Will

dated 12.1.2007 in his presence. The attesting witness has identified the signatures

of Sh. Mohammad Hussain Amiri on the subject Will and has deposed that the

executant was in a sound disposing mind when the Will was executed and attested.

Though the witness Sh. Umesh Jagtiani has not personally come in the witness

box, however, there is no need to prove his affidavit which is by way of

examination-in-chief and therefore I accept the affidavit by way of evidence of Sh.

Umesh Jagtiani, more so as there is no opposition to the same by the other legal

heirs of Sh. Mohammad Hussain Amiri. The original Will has been proved and

exhibited as Ex.PW1/2.


4.            During the course of arguments, I put it to the counsel for the plaintiff

that Part VI of the Indian Succession Act, 1925 dealing with the testamentary

succession does not apply to Mahomedans and this is clear from Sections 57 and

58 of the Act. Counsel for the petitioner also concedes that the issue of how a Will

is executed and proved of a Mahomedan is cited in MULLA Principles of

Mahomedan Law, Nineteenth Edition by Lexis Nexis, and as per which there is no



Test. Cas. No.17/2011                                                       Page 2 of 3
 format of a Will and in fact a Will of a Mahomedan can be an oral Will ie a Will

even does not have to be attested as it need not be in writing.


5.            In view of the above, it is clear that a probate case with respect to the

Will of a deceased Mahomedan is not maintainable because the provisions of the

Indian Succession Act pertaining to testamentary succession will not apply to

Mahomedans. At this stage, at the request made on behalf of the petitioner as also

the other legal heirs of Sh. Mohammad Hussain Amiri, this petition is converted

into a suit for declaration inasmuch as heading of the case should not defeat the

substance of the case. The present petition therefore be re-numbered as a suit and

petitioner will file the court fees of Rs.20 on the suit for declaration as the suit is a

suit for declaration seeking validity of the Will dated 12.1.2007 executed by late

Sh. Mohammad Hussain Amiri. Court fees be paid within two weeks from today.


6.            In view of the above fact that the Will is proved and there is no

opposition to the same by the respondents no. 2 to 5 who are the legal heirs of Sh.

Mohammad Hussain Amiri, the present suit for declaration is decreed declaring

that late Sh. Mohammad Hussain Amiri died leaving behind his valid Will dated

12.1.2007. Decree sheet be prepared accordingly. Parties are left to bear their own

costs.



APRIL 05, 2016                                             VALMIKI J. MEHTA, J.

ib