Mir Alfaz Ali, J.

1. This appeal is directed against the judgment and order dated 15.06.2010 passed by the learned District Judge, Jorhat in Probate Title Suit No. 4/2008, refusing to grant probate in favour of the appellant. The present appellant as plaintiff filed an application under Section 276 of the Indian Succession Act, for granting probate in respect of a WILL made by her father late Syed Badiuz Zaman, who died on 19.8.2006. The case of the petitioner was that her father late Syed Badiuz Zaman executed a registered WILL in favour of the petitioner on 08.05.2003, in respect of the property described in the schedule of the petition as well as the said WILL. The respondent being the sister of the petitioner, resisted the petition by filing a written objection stating inter-alia that her father, the alleged testator was suffering from mental ailments for about 30 years before his death and he was not mentally fit to execute any WILL. It has also been contended that the testator never intended to make such WILL and the alleged WILL was prepared forcibly without the knowledge of the opposite party, taking advantage of the fact, that at the relevant time the testator was staying with the petitioner.

2. On the basis of the above pleadings of the parties, learned trial court framed the following issues:

1. Whether the petition filed by the petitioner is maintainable in law as well as in facts?

2. Whether the testator namely Badiyuz Zaman was mentally and physically fit to execute the WILL?

3. Whether the WILL was executed by the deceased voluntarily?

4. Whether the petitioner/plaintiff is entitled to get Probate of the WILL?

5. To what relief’s the parties are entitled to?

3. The plaintiff/appellant examined 4 witnesses including herself. The defendant/respondent also examined 3 witnesses in support of her objection. After hearing the parties, the learned District Judge dismissed the petition for probate.

4. Aggrieved by the judgment and order of the learned District Judge, the plaintiff has preferred the instant appeal.

5. I have heard Mr. PS Deka, learned counsel for the appellant and Mr. K. Bhattacharjee, learned counsel for the respondent.

6. The learned counsel for the appellant relying on section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, submitted that the present WILL as well as the probate proceeding should be governed by the Indian Succession Act, but the learned Trial Court committed error by holding that the Succession Act shall not apply in the instant case. It has also been contended that the execution and genuineness of the WILL was duly proved by the plaintiff and therefore, the learned trial Court ought not to have dismissed the petition.

7. Countering the above submission, learned counsel for the respondent submitted that the WILL having been executed by a Muslim, shall be governed by Muslim personal law. The learned counsel for the respondent relying on the decision of the Apex Court in Shemalal v. Hasan Khani Rawther & Ors. reported in (2011) 9 SCC 223, Sajathi Bi v. Fathima Bi & Ors. reported in 2002 STPL 9820 Madras as well as Rijia Bibi v. Md. Abdul Kachem reported in 2013 STPL 3720 further contended that a Mohammedan cannot by WILL dispose more than one third of surplus of his estate after payment of funeral expense and debts and in the instant case, the entire property of the testator was the subject of the WILL and therefore, the WILL was void for want of consent of the legal heirs and also for the extent of property bequeathed being beyond 1/3 rd of the testators estate.

8. Section 58 under Part-VI of the Indian Succession Act reads as under:

General application of Part -

(1) The provisions of this Part shall not apply to testamentary succession to the property of any Muhammadan nor, save as provided by Section 57, to testamentary succession to the property of any Hindu, Buddhist, Sikh or Jania; nor shall they apply to any WILL made before the first day of January, 1866.

(2) Save as prov