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2021 Supreme(Bom) 883
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G.S. Patel, J.
Mohamed Obedulla Chinoy & Ors. - Appellants
Versus
Rasubhai Suleman Chinoy - Respondent
Testamentary Petition No. 135 of 1990
Decided On : 10-03-2021
Jai Munim, Advocate, Bachubhai Munim & Co, Advocate, Sagar Patil, Advocate
Under Mahomedan law, attestation is not necessary for a Will made by a Mahomedan, and the rigour of Section 63 of the Indian Succession Act 1925 does not apply to Wills made by Mahomedans.
Headnote:
WILL - Letters of Administration - Indian Succession Act 1925, Section 63 - Summary of the acts and sections referenced and discussed by the court: The court discussed the applicability of Section 63 of the Indian Succession Act 1925 to a Will made by a Sunni Hanaf Mahomedan and the requirement of attestation of a Will under Mahomedan law. The court referred to Section 57 and Section 213 of the Indian Succession Act 1925, as well as the Cutchi Memons Act of 1938 and Mulla's commentary on the principles of Mahomedan law. The court also cited the cases of In re Aba Satar Haji Aboobuker (1905 7 BLR 558) and Bayabai v Bayabai (1942) AIR Bombay 328, and discussed the legal principles established in these cases.
Fact of the Case:
The Petition for Letters of Administration with Will annexed has been pending in the Court for thirty one years. The Will in question is of one Rasubai Suleman Chinoy, a Cutchi Memon governed by Sunni Hanaf Mahomedan law. The Registry raised an objection regarding the validity of the Will due to lack of attestation.
Finding of the Court:
The court found that the rigour of Section 63 of the Indian Succession Act 1925 does not apply to Wills made by Mahomedans, and that under Mahomedan law, attestation is not necessary for a Will. The court relied on the cases of In re Aba Satar Haji Aboobuker and Bayabai v Bayabai to support its finding.
Issues: The issues involved in the case were the applicability of Section 63 of the Indian Succession Act 1925 to a Will made by a Sunni Hanaf Mahomedan, and whether under the law governing Sunni Hanaf Mahomedans, there is any requirement of the attestation of a Will.
Ratio Decidendi: The court held that Section 63 of the Indian Succession Act 1925 does not apply to Wills made by Mahomedans, and that under Mahomedan law, attestation is not necessary for a Will. The court relied on the legal principles established in the cases of In re Aba Satar Haji Aboobuker and Bayabai v Bayabai to support its decision.
Final Decision: The court answered the objection raised by the Registry, stating that the Will, being of a Cutchi Memon governed by Mahomedan law, does not require attestation, and directed the grant of probate. The court also issued directions for the preservation of the estate.
JUDGMENT
G S Patel, J. - 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. There is indeed a question of law involved. But the answer to it is neither complex nor new. Indeed, that answer is even older than the Petition: the solution is from 1905. It is an answer that the Petition could have received very much earlier. I have deliberately chosen to preface this order with these comments, for, during three decades since the Petition was fled, two of the four Petitioners have passed on, and the remaining two are well into their eighties.
2. Their wait ends today.
3. The matter is listed on account of an objection taken by the Registry. I cannot fault the Registry in taking the objection that it does. The objection raises a question of law. It is that question of law that is now to be answered.
4. The Will in question is of one Rasubai Suleman Chinoy. She died in Mumbai on 10th October 1989. She is said to have made a Will in Urdu. An English translation is provided. The Will is said to have executed in Mumbai on 20th December 1980. Rasubai appointed no Executors under the Will. The Petitioners are four of her five children. The fifth is a son, one Shahjehan Chinoy. He lives in Karachi, Pakistan. Thus, there is no question of service of a citation on him.
5. At this stage, two aspects are important. Paragraph 9 of the Petition says that Rasubai was governed by Sunni Hanaf Mahomedan law. The Will in question does not contain an attestation. It does not have, in other words, the signatures of any witnesses. Second, what the Will appears to do (and I have perforce to take this from English translation) is to say that the inheritance that Rasubai said she received from her paternal aunt, Khetubai, along with the income was to be returned to Khetubai's charity trust after drawing up the accounts until the date of the return. The entire bequest, as it were, is thus to a charity. None of the four Petitioners have claimed any part of it.
6. The Registry's objection is precisely that the Will lacks attestation and, therefore, does not conform to the requirements of Section 63 of the Indian Succession Act 1925. The Registry has expressed a doubt about the validity of such a Will.
7. The objection is understandable. But what is to be decided is:
(i) whether Part VI of the Indian Succession Act 1925 in fact applies to a person of this religious denomination, i.e. a Sunni Hanaf Mahomedan; and (ii) whether under the law governing Sunni Hanaf Mahomedans, there is any requirement of the attestation of a Will at all.
8. Before I turn to these questions, one administrative direction is immediately necessary. Petitioner No. 4 has passed away. I will permit the deletion of his name without need of re-verification. That amendment is to be carried out in Court at once.
9. Our point of departure in this discussion must first be Section 57 of the Indian Succession Act 1925. The wording of this Section makes it abundantly clear that the provisions of that Part as are set out in Schedule III only apply to a Hindu, Buddhist, Sikh or Jaina (and then there are the other requirements of where the Will is made and to what it pertains; we are not concerned with those provisions). Now Schedule III includes various sections in Part VI. One of those is Section 63. Thus, Section 63 only applies to the Will of those classes of persons mentioned in Section 57, i.e. a Hindu, Buddhist, Sikh or Jaina. It does not apply to Mahomedan. For completeness, one must look at Section 213 of the Indian Succession Act. This puts the matter beyond all controversy. It tells us when a right as an Executor or legatee is established. Sub-clause (i) says that no such right can be established in any Court unless a Court o
