The Bombay High court delivered its judgment in a 31 year old testamentary petition and remarked strongly on the delay calling it ‘inexplicable’ and ‘tragic’ commentary on the justice system.
The single judge bench of Justice G.S. Patel while considering an uncontested testamentary petition filed by the deceased’s children, firstly acknowledged the 31 year delay in the judgment and remarked “This is an uncontested Petition for Letters of Administration with Will annexed. The first oddity about the matter, and it is truly inexplicable, apart from being a tragic and terrible commentary on our justice delivery system, is that, though uncontested, the matter has been pending in this Court for the last thirty one years.” And further added “I have deliberately chosen to preface this order with these comments, for, during three decades since the Petition was filed, two of the four Petitioners have passed on, and the remaining two are well into their eighties.”
The petition was filed by the deceased Rasubai Suleman Chinoy’s children for execution of their mother’s Will in which she wanted to donate her inheritance to a charitable trust. The issue was that the Will of the deceased was not attested due to which two questions arose before the court- (i) if the provisions of part-V of the Indian Succession Act, 1925 apply to the deceased who was a Sunni Hanafi Mahomedan and (ii) if there was any requirement of attestation of Will according to the laws governing Sunni Hanafi Mahomedans
The court observed that the section 57 of the Indian Succession Act, 1925 makes it clear that the provisions only apply to Hindu, Buddhist, Sikh and Jain and Mahomedans were not subjected to the statute thus section 63 was not applicable in the present case. Regarding the second question, the court relied on a 1905 case in which Justice Badruddin Tyabji dealt with the same issue and held that no attestation was required as per the Mahomedan laws. The court upholding the same remarked “At this stage perhaps I should enter only one solitary comment: nothing changes — even after 150 years.”
The court reached to the conclusion that since the deceased was a Cutchi Memon, the Will was governed by Mahomedan law and did not require attestation. The court then directed that the matter shall proceed to grant of probate and received confirmation from Ms Chanda Bhatt, in charge of Testamentary Department, that she will issue probate by 19th march 2021.
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