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2024 Supreme(Online)(Bom) 5179
HIGH COURT OF BOMBAY
HON'BLE SHRI JUSTICE N. J. JAMADAR
NINA ANWAR MERCHANT – Appellant
Versus
KARIM UL HAQ MEGHANI AND 17 ORS AND YUWAN APARTMENTS(BANDRA) CO-OPERATIVE HOUSING SOCIETY LTD.(RES) – Respondent
IA/1739/2023
Mr. Zubin Behramkamdin, Sr. Advocate with Mr. Chaitanyaa Bhandarkar, Ms. Janavi Kursija, for Applicant/Plaintiff. Mr. Tejas Vora with Mr. Sagar S. i/by V. Acharya, for Defendant Nos.1 to 4. Mr. Dilip Rai i/by Mr. D.R.Mishra, for Defendant Nos.5 and 6. Mr. Shailesh Shah, Sr. Advocate i/by Mr.A.M.Rajabally, for Defendant Nos.10 and 11.
Khoja Muslims are governed by Hindu law in testamentary succession, allowing for valid Wills irrespective of Mahomedan law restrictions.
Headnote:
Succession - Estate Administration - [Act Section List] - The court examined the testamentary succession of a Khoja Muslim under Hindu law, emphasizing the validity of the last Will and the implications of a family arrangement in determining rightful heirs and property ownership.
Fact of the Case:
The suit concerns the administration of the estate of a deceased testatrix, who left a contested Will. Disputes arose over property ownership and the legitimacy of claims by various defendants, including allegations of fund misappropriation.
Finding of the Court:
The court found that the testatrix's estate was governed by Hindu law for testamentary succession, affirming the validity of her Will and the family arrangement that allocated properties to her.
Issues: The primary issues included the validity of the testatrix's Will, the rightful heirs to her estate, and whether the defendants had any legitimate claims to the property.
Ratio Decidendi: The court held that Khoja Muslims are governed by Hindu law in matters of testamentary succession, allowing the testatrix to dispose of her property freely under her Will.
Final Decision: The court partly allowed the applications, affirming the testatrix's Will and appointing a Court Receiver for the estate.
ORDER :
1. The instant suit is for administration of the estate of late Gulshan Rehman Meghani, in accordance with her last Will and Testament dated 8 July 2020. The applicant/Plaintiff has taken out these Interim Applications for diverse interim reliefs, primarily, to protect the estate of the deceased.
2. The background facts can be summerized as under :
2.1 Late Gulshan Rehman Meghani, the testatrix, was a Shia Imami Ismaili Khoja Muslim. The testatrix passed away on 16 October 2020, issueless. Rehman Meghani, the husband of the testatrix, predeceased her. Rehman had several disputes with his younger brother Kabirdin Meghani, father of Defendant Nos.1 to 3. Rehman Meghani was the sole and absolute owner of Flat No.A-82, 8th Floor, Yuwan Apartments, Mount Mary Road, Bandra Mumbai. Rehman Meghani, during his life time, resided in the said flat along with the testatrix and his sister Dilashad – Defendant No.6.
2.2 Rehman Meghani passed away intestate on 4 March 2009, issueless. The testatrix and three sisters of Rehman, namely, Dilshad – Defendant No.6, late Roshan Bandeali Rupani and late Shahbai Abdul Aziz Harji succeeded to the estate of Rehman Meghani. Disputes arose between the testatrix, Dilshad – Defendant No.6, Roshan and Shahbai. Disputes were amicably resolved and a Deed of Family arrangement was executed on 19 December 2009. Under the terms of the said family arrangement, all the properties that were referred to and described in clause 2 read with Part A of Annexure II, Part B of Annexure II, Part C of Annexure II and Part D of Annexure II were to vest absolutely in the testatrix. Defendant No.6 Dilshad would vacate the said flat No.A-82 and the testatrix would be in sole and exclusive use, occupation and possession of the said flat. All the residuary assets of Rehman Meghani would also belong to and vest in the testatrix. The said Deed of family arrangement was acted upon by all the parties.
2.2 The Plaintiff avers, on 24 August 2020, the Plaintiff located the last Will and Testament dated 8 July 2020 of late Gulshan Meghani, the testatrix. The Plaintiff was appointed as an executor under the said Will along with Altaf Huseinali Merchant – Defendant No.7. The latter has not manifested any intention to act as an executor and has, in effect, renounced the executorship. The Plaintiff and Defendant No.16, her sister are the beneficiaries under the said Will along with Defendant Nos.1 to 5, 7, 9 to 13, 17 and 18, the other beneficiaries thereunder.
2.3 In the meanwhile, the Plaintiff alleges that the Defendants, especially Defendant Nos.1 to 4 and Defendant No.10 have siphoned off the funds of the testatrix. Various acts of commission and omission are attributed to Defendant Nos.1 to 4 and Defendant No.10. The Plaintiff further asserts, Defendant Nos.1 and 2 have filed Testamentary Petition No.1413 of 2010, as a counter blast to the Testamentary Petition (L) No.8514 of 2020 filed by the Plaintiff for Probate of the last Will and Testament of the testatrix, and have prayed for Letters of Administration to the property and credits of late Rehman Meghani.
2.4 The Plaintiff avers, since at the time of death of late Rehman Meghani, Kabirdin Meghani, brother of Rehman Meghani, had predeceased him, Defendant Nos.1 and 2 cannot succeed to the estate of late Rehman. Thus, Defendant Nos.1 and 2 as also Defendant Nos.3 and 4 have no interest whatsoever in the estate of late Rehman Meghani. Alleging that Defendant Nos.1 and 2 have fraudulently obtained the Succession Certificate in respect of the securities of late Rehman Meghani, under the Succession Certificate dated 24 September 2019, the Plaintiff has, inter alia, sought decree for administration of the estate of the testatrix, by and under the directions of this Court in accordance with her last Will and Testament dated 8 July 2020, to pass a preliminary decree declaring shares of the beneficiaries as per the last Will and Testament, to declare that Defendant Nos.1 to 4 have no right
