1. 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