Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2016 Supreme(Bom) 635

IN THE HIGH COURT OF MAHARASHTRA
G. S. Patel, J.
HAMEED JAFFAR AHMED IBRAHIM MANDEEL - Appellant
Vs.
FARHAT MEHDI MANDIL - Respondent
Misc. Petition (L) No. 1731 of 2014
Decided on : 11-03-2016

Advocates Appeared:
For the Petitioner: Uday Bobade,Ms. Aditi Bhatt,Y. R. Shah
For the Respondent: Ms. J. M. Sidhwa,M/s Bina Rao and Co.,Abbas Muktiyar,Bharat Punekar

The main legal point established in the judgment is the interpretation of traditional Shia Laws of Inheritance, specifically regarding the exclusion of certain classes of heirs from inheritance and the distribution of property among the heirs.

Headnote:
Revocation - Probate - Shia Law of Inheritance - Sections 87, 88, 89, 90, 96, 97 - The court discussed the traditional Shia Laws of Inheritance and the shares of siblings as 'sharers' under Shia Law. It highlighted the provisions of sections 87, 88, 89, 90, 96, and 97 of the commentary, emphasizing the exclusion of certain classes of heirs from inheritance and the distribution of property among the heirs. The court concluded that the petitioner and supporting respondents were excluded from inheritance and had no caveatable interest.
Fact of the Case:

The case involved a Petition for revocation of a probate granted to the executors of a Will. The petitioner and supporting respondents claimed to be heirs according to Shia Law of Inheritance.
Finding of the Court:

The court found that the petitioner and supporting respondents were excluded from inheritance under Shia Law, as the deceased was survived by his widow and daughter. The court also dismissed the allegations of illegitimacy made by one of the respondents.
Issues: The main issue was whether the petitioner and supporting respondents had a caveatable interest as heirs under Shia Law.
Ratio Decidendi: The court held that the petitioner and supporting respondents were excluded from inheritance and had no caveatable interest under Shia Law, based on the provisions of sections 87, 88, 89, 90, 96, and 97 of the commentary.
Final Decision: The Petition for revocation was dismissed, and there was no order as to costs.

Judgement Key Points

Key Points: - The petition for revocation was dismissed because petitioners were excluded from inheritance under Shia Law as the deceased was survived by a widow and a daughter (!) (!) (!) . - The court clarifies the two-group structure of heirs under Shia Law: heirs by consanguinity and heirs by marriage, with further subclassifications and the principle that the first class excludes the second (!) (!) (!) . - Sections 87, 88, and 89 are central to determining who inherits and who is excluded; the widow is never excluded and inherits with the nearest heirs by consanguinity (!) (!) (!) . - The table of sharers and shares (section 90) is a ready reckoner and does not by itself confer a share; it requires the existence of a share under other sections (!) (!) (!) . - The judgment rejects arguments based on bequests to heirs where petitioners are not heirs, and notes limitations on revocation grounds since petitioners had no caveatable interest (!) (!) (!) . - The petition was delayed and dismissed as there was no valid basis for revocation given exclusion from inheritance (!) (!) (!) . - The court emphasizes that allegations regarding illegitimacy and unrelated affidavits are not substantiated and do not affect the outcome (!) (!) .

What is the effect of Shia Law of Inheritance on caveatable interests when the deceased is survived by a widow and a daughter?

What is the proper interpretation of sections 87, 88, 89, 90, 96, and 97 of the Shia law commentary as it affects the classification of heirs and distribution of estate?

What are the grounds for revocation of probate under the Shia Law framework when petitioners claim caveatable interests but are found to be excluded from inheritance?

JUDGMENT :

Heard.

2. This is a Petition for revocation of a probate granted to respondent Nos. 3 and 4 in respect of a Will dated 19th September 2003 made by one Mr. Mendi Mandil ("Mehdi"), who died in Mumbai on 3rd October, 2003. The 1st respondent to this revocation Petition is Mehdi's widow, Farhat, and the 2nd respondent is their daughter Mehjabeen. Respondent Nos. 3 and 4 were executors appointed under that Will. It is they who sought and obtained the probate.

3. Respondent Nos. 5 to 15 support the petitioner. They all claim to be the heirs according to Shia Law of Inheritance. The petitioner is Mehdi's brother.

4. Affidavits in Reply and Rejoinder have been filed. To one of these Affidavits, filed by respondent No. 8, I will return shortly at the invitation of Ms. Sidhwa, learned Advocate for the petitioner, since I believe she is right when she says that this Affidavit is thoroughly irresponsible.

5. However, the point that Mr. Bobade for the petitioner canvasses is that under traditional Shia Laws of Inheritance, the petitioner and respondent Nos. 5 to 15 are all, what he calls "sharers" and have a pre-defined fractional share in Mehdi's estate. If he is right, and they do, they undoubtedly have a caveatable interest, and citations ought to have been served on them; and, consequently, since that was not done, the revocation Petition would have to succeed. If he is not right in his submission, however, the petitioner and his supporting respondents cannot be said to have any caveatable interest at all, and the Revocation Petition must fail.

6. It is not in dispute that Mehdi's parents predeceased him, and that he was survived by the 1st respondent, his widow Farhat, and the 2nd respondent, his daughter, Mehjabeen. In Mr. Bobade's submission, in Shia Law the shares of siblings are predefined. He bases this submission on a table of sharers in Shia Law to be found in Mulla's Principles of Mahomedan Law (19th Edition, 1990). That table relates to Sn.90 of the commentary.

7. Sn.90 of the commentary falls under Chapter VIII of this treatise. That Chapter is entitled Shia Law of Inheritance. Sections 87 to 92, 96 and 97 are important. In particular, sections 87, 88 and 89 must also be read together. For convenience, sections 87 to 92, 96 and 97 are reproduced below :

"87. Division of heirs. - The Shias divide heirs into two groups, namely, (1) heirs by consanguinity, that is, blood relations, and (2) heirs by marriage, that is, husband and wife.

88. Three classes of heirs by consanguinity. - (1) Heirs by consanguinity are divided into three classes, and each class is subdivided into two sections. These classes are respectively composed as follows :-

I. (i) Parents;

(ii) children and other lineal descendants h.1.s.

II. (i) Grandparents h.h.s. (true as well as false);

(ii) brothers and sisters and their descendants h.1.s.

III. (i) Paternal, and

(ii) maternal uncles and aunts, of the deceased, and of his parents and grandparents h.h.s., and their descendants h.1.s.

(2) Of these three classes of heirs, the first excludes the second from inheritance, and the second excludes the third. But the heirs of the two sections of each class succeed together, the nearer degree in each section excluding the more remote in that section (Baillie, II, 278, k 280, 285).

89. Husband and wife. - The husband or wife is never excluded from succession, but inherits together with the nearest heirs heirs by consanguinity, the husband taking ¼ or ½, and the wife taking 1/8 or ¼ under the conditions mentioned in the Table of Sharers on page 84.

90. Table of Sharers-Shia Law. - (1) For the purpose of determining the shares of heirs, the Shias divide heirs into two classes, namely, Sharers and Residuaries. There is no separate class of heirs corresponding to the "Distant Kindred" of Sunni law.

(2) The sharers are nine in number. The Table on page 84 gives a list of Sharers toge

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