Review Petition No.41 of 2010,Notice of Motion No.2974 of 2008,Suit No.2510 of 2008

16th December, 2010

Petitioner Counsel: Mr. S. A. AHMED
Respondent Counsel: Mr. R. M. PARDIWALLA

Cases Cited:
Sayeeda Shakur Khan Vs. Sajid Phaniband, 2006(5) Bom.C.R. 7 [Para 5,21,23]

JUDGMENT

JUDGMENT :- The plaintiffs have applied for review of the order dated 14th October, 2010 on the ground of an error apparent on the face of the record and for the reasons considered sufficient by the plaintiffs.

2. The order dated 14th October, 2010 came to be passed in the above Notice of Motion which was taken out by the plaintiffs for administration of the estate of the deceased son of the plaintiff No.1 and brother of the other plaintiffs. The Suit has been filed for administration of his estate on the ground of intestacy.

3. The defendant produced Will of the deceased who is her deceased husband. The marriage of the defendant and the deceased was registered under the Special Marriage Act. Consequent upon such registration, they would be governed by the Indian Succession Act for the purpose of succession, both intestate or testamentary. Since the deceased would be governed by the Indian Succession Act, he would have no restrictions on him to bequeath only 1/3 of his property by a Will as per the Muslim Personal Law. He was also not required to obtain consent of the heirs to bequeath in excess of 1/3rd Property. He would be entitled to bequeath the entire of his properties. It would, of course, be required to be proved by the heirs propounding the Will. The deceased, being a Muslim would not require to have the Will probated under the Indian Succession Act which applied to his succession. Based on such facts in the suit of the plaintiff, I came to the prima facie conclusion that the marriage being registered and the Will being produced and the probate of the Will not being required, the defendant would have to prove the Will in the suit itself. The onus would be on the defendant to prove the Will.

4. Written statement was filed. The rejoinder of the plaintiff made out a case of forgery of the Will. I consequently framed the issues which are similar to the issues which are framed in the testamentary suits. Since the relationship between the parties as well as properties of the deceased were admitted, the defendant had the "right to begin" the evidence.

5. It appears that both the Advocates relied upon the Judgment of Justice Nishita Mhatre, reported in Sayeeda Shakur Khan & others Vs. Sajid Phaniband and another, 2006(5) Bom.C.R. 7 which has not been specifically set out in my order.

6. Mr. Ahmed appearing on behalf of the petitioner in this Review Petition has relied upon para 13 of the said Judgment, which reads thus :

"In my view, prima facie, it appears that a Muslim who marries under the Special Marriage Act is entitled to bequeath his entire property. There would be no restriction on him to bequeath only 1/3 of his property as is provided under the Muslim Personal Law. Moreover, such a person would not have to obtain the consent of the heirs in order to bequeath in excess of the legal third of his property. However, once a Muslim who is married under the Special Marriage Act is treated on par with persons of other communities, married under the Special Marriage Act, all the rigours of the Indian Succession Act are applicable. Prima facie, it appears to me that a Will of such a Muslim who was married under the Special Marriage Act would require to be probated."

Mr. Ahmed concedes that a Muhammadan who marries under the Special Marriage Act is entitled to bequeath his entire property as observed in this paragraph. He also contends that the other observations in the paragraph would also apply to the deceased's Will. Those are that he would be treated on par with persons of other communities, married under the Special Marriage Act and hence the rigours of the Indian Succession Act applicable to such Wills would also apply to the deceased. Mr. Ahmed has argued that because this judgment had not been considered by me, an error in coming to the conclusion must be corrected. Mr. Pardiwalla contended that his case does not fall within the purview of Review application under Order 47 of the Civil Procedure Code.

7. The Will which is sought to be relied upon by any party is required to be proved in all cases. It may be proved as any other document requiring attestation as specifically set out in the Indian Succession Act as well as Indian Evidence Act, in a suit filed by the parties where the probate is not required and in a probate petition filed by the parties in cases where the probate is required.

8. The consequences of registration of the marriages under the Special Marriage Act, 1954, are set out in Section 21 of the Act thus:

"21. Succession to property of parties married under Act.- Notwithstanding any restrictions contained in the Indian Succession Act, 1925, with respect to its application to members of certain communities, succession to the property of any person whose marriage is solemnized under this Act and to the property of the issue of such marriage shall be regulated by the provisions of the said Act and for the purpose of this Section that Act shall have effect as if Chapter II of Part V (Special Rules for Parsi Intestates) had been omitted therefrom."

9. Hence, when a person marries under the Special Marriage Act, he would be free from the restrictions contained in the Indian Succession Act with respect to the application of the Indian Succession Act to him as a Mohammedan. The section relates to the succession of the properties of the persons married under the Act and to the properties of the issue of such marriage. That succession is notwithstanding any restrictions contained in the Indian Succession Act, 1925. Hence sections setting out restrictions upon the communities would not apply. The other provisions of the Act would.

10. The restrictions under the Indian Succession Act are inter alia with regard to the proof of the Will only by obtaining probate in case of certain communities set out in Sections 29, 57, 58 and 213 of the Indian Succession Act.

11. The relevant part of Section 29 of the Indian Succession Act, reads thus :

“ PART V INTESTE SUCCESSION CHAPTER I PRELIMINARY

29. Application of Part.- (1) This Part shall not apply to any intestacy occurring before the first day of January, 1866, or to the property of any Hindu, Muhammadan, Buddhist, Sikh or Jain."

12. Section 29 is, in Part V of the Indian Succession Act, relating to intestate succession. Chapter II therein deals with Rules in cases of intestates other than Parsis shown in Sections 31 to 40 of the Indian Succession Act. Under Section 29(1), these rules do not apply inter alia to Mohammedans. Hence 29(1) puts restrictions upon the applicability of Part V including Sections 31 to 40 to Mohammedans. Under the non-obstante clause mentioned in Section 21 of the Special Marriage Act notwithstanding such restrictions, the succession of testates mentioned under the Special Marriage Act would be regulated by the Indian Succession Act. The result is that the restriction to succession would not be applicable to Mohammedans (or any other communities mentioned in Section 29 of the Indian Succession Act) as per the Special Marriage Act. Consequently Part V of the Indian Succession Act would apply to Mohammedans. Their intestate succession would be governed by the Rules contained in Sections 31 to 40 of the Indian Succession Act. The deceased, however died testate.

13. Under Section 57 of the Indian succession Act, the cases where probate is required are set out. Section 57 also excludes Mohammedans. The relevant part of Section 57 reads thus :

“PART VI TESTAMENTARY SUCCESSION CHAPTER I INTRODUCTORY

57. Application of certain provisions of Part to a class of Wills made by Hindus, etc.- The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply -

(a) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jain, on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Government of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Court of Judicature at Madras and Bombay; and

(b) to all such Wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories of limits; and

(c) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b)."

14. Hence, probate would not be required to be obtained in cases of Wills of Mohammedans. Therefore, the authenticity of the Will of a Mohammedan shall be required to be considered, whenever called upon by any Court in proceedings under which the Will of a Mohammedan, as any other document, is produced and is required to be proved. Section 57 of the Indian Succession Act does not set out the extent of the properties that a Mohammedan can bequeath, any restriction not to consider any Will of any Mohammedan except if probated, and/or any other restrictions. The restrictions are only under the Muslim Personal Law.

15. Succession to the property of such persons would be notwithstanding those restrictions for the members of certain communities like Hindus, etc. There is no restriction for the members of the Mohammedan community for proving of Will only by obtaining probate of this Court. Therefore, if the deceased was a Hindu, Buddhist, Sikh or Jain propounding a Will made outside Mumbai (or other metropolitan cities mentioned in Section 57) or for properties bequeathed outside Mumbai (or other Metropolitan cities mentioned in Section 57), the restriction would be applied to him if he married under the Special Marriage Act. Since the deceased was Mohammedan, the restrictions under Section 57 of the Indian Succession Act would not apply to him.

16. The relevant part of Section 58 of the Indian Succession Act reads thus :

"58. General application of Part.- (1) The provisions of this Part shall not apply to testamentary succession to the property of any Mohammedan nor, save as provided by Section 57, to testamentary succession to the property of any Hindu, Buddhist, Sikh or Jain; nor shall they apply to any Will made before the first day of January, 1866.

(2) Save as provided in sub-section (1) or by any other law for the time being in force, the provisions of this Part shall constitute the law of India applicable to all cases of testamentary succession."

17. Under Sections 57 and 58 there are no restrictions upon Mohammedans and none would apply to the deceased. In fact, there is a facility to Mohammedans not to apply for and obtain probate.

18. Consequently, in view of the first clause of Section 21 of the Special Marriage Act, 1954 being a non-obstante clause so far as it relates to Sections 57 and 58 of the Indian Succession Act, the effect of the marriage of the deceased with the defendant would be that his succession would be governed under the Indian Succession Act. He would be entitled to bequeath the entire of his property by Will. The restrictions under Sections 57 and 58 of the Indian Succession Act which are restrictions only upon the Hindu, Buddhist, Sikh or Jain communities would not be applicable to the deceased.

19. Similarly, Mr. Ahmed referred to the applicability of Section 213 of the Indian Succession Act, the relevant part of which reads thus :

"213. Right as executor or legatee when established.- (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in (India) has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.

(2) This section shall not apply in case of Wills made by Mohammedans......."

Hence section 213 of the Indian Succession Act also puts restrictions upon executors and legatees of certain communities. There are no such restrictions upon Mohammedans. Hence, if an executor or a legatee of a Hindu etc. seeks to execute a right under a Will, even if not executed in Mumbai (or any other metropolitan cities) or for properties not in Mumbai (or any other Metropolitan cities) he would have the restrictions upon him to probate the Will he propounds. There is no restriction upon Wills of Mohammedans under Section 213 also. The exception under Section 213(2) inter alia upon Mohammedans gives them a facility to propound a Will which is not probated.

20. That would, of course, be subject to proof, but in that Court where it is relied upon itself.

21. It is contended by Mr. Ahmed on behalf of the plaintiff that under Section 213 of the Indian Succession Act, 1925, the defendant as legatee cannot establish her right as such in any Court unless she had probated the Will that she has propounded even though she is a Mohammedan because she has propounded the Will of the deceased to whom the Indian Succession Act applies and consequently as per the Judgment in Sayeeda Shakur Khan (supra) probate of the Will of such Mohammedan would be required to be granted. There is no restriction upon Mohammedans to apply for probate under Section 213(2) of the Indian Succession Act. Hence the non-obstante clause in Section 21 of the Special Marriages Act would not also require the defendant to have such restriction placed on her.

22. Section 21 of the Special Marriage Act, and Sections 29, 57, 58 and 213(2) of the Indian Succession Act are required to be seen together and reconciled. Section 21 of the Special Marriage Act applies to the succession of the deceased. His Intestate succession would be governed by Sections 31 to 40 of the Indian Succession Act. Sections 57 and 58 of the Indian Succession Act do not put any restrictions upon proving the Will of the deceased Mohammedan. Section 213 of the Indian Succession Act applies to the claim of the defendant. The defendant as legatee may otherwise require to probate the Will she propounds. She would be exempted from probating the Will since she is a Mohammedan, under Section 213(2) of the Indian Succession Act. Section 213 does not deal with the extent of succession of the deceased. It does not put any restrictions upon the deceased as a Mohammedan to have his Will probated. It only deals with the right of the claimants to follow the procedure set out in that legislation. The defendant would not require to obtain the probate of the Will she propounds because she is a Mohammedan and it matters not how and under which legislation she has married. As she claims properties by testamentary succession, that succession is governed under Section 21 of the Special Marriage Act.

23. Hence, paragraph 13 of the Judgment in the case of Sayeeda Shakur Khan (Supra) cannot be relied upon to conclude the requirement of allowing probate. The aforesaid sections 29, 30 to 41, 57, 213, etc. it appears, were not shown to the learned Judge. Besides that case did not deal with the claim of the heirs of the deceased against the claim of a beneficiary under his Will in an administration suit. The suit related to directions in respect of tenants of a tenanted property and accounts thereof. Considering all of the sections together, no restrictions can be put upon the defendant claiming as legatee or in respect of the Will of the deceased which does not restrict his testamentary succession under any of the provisions of the Indian Succession Act.

24. The defendant, therefore, shall not require to obtain probate of the Will of her deceased husband. She shall be entitled to rely upon the writing of the deceased and prove the same as a document requiring attestation as required under the provisions contained in Sections 68 and 71 of the Indian Evidence Act and the special provisions of Section 63 of the Indian Succession Act applicable to the succession of the deceased, in this suit itself.

25. The Review Petition is disposed of accordingly. The Suit shall proceed as previously directed.

26. Notice of Motion No.3312 of 2010 in the above Review Petition is also disposed of accordingly.

Ordered accordingly.