A valid will executed under Muslim Personal Law may be proven through attestation and does not require probate, allowing for joint administration of estate.

1. The above Testamentary Petition came to be filed for Letters of Administration to the estate of one Taherali Hasanali Nalwala by his sister as the original Petitioner. She has since expired and her heir and legal representative has been brought on record as the Petitioner/Plaintiff.

2. The citation came to be served upon the Defendant/Defendant. She is the wife of the deceased. She filed her Caveat showing that the deceased had executed a Will in respect of his entire estate which was left in the safe custody of one Tayabali Adamali Tinwalla (Tinwalla) who was one of the attesting witnessed to the Will. She claimed that Tinwalla produced the Will in a sealed envelope before the community head of the parties and it was opened in the presence of the certain senior community members.

3. Upon such pleadings the following issues came to be framed by Justice Vazifdar on 14th December, 2007 and I answered as follows :

ISSUES

1. Whether the Defendant proves that the deceased had executed a Will dated 28.12.1999, as alleged in the affidavit in support of the caveat. Yes.

2. Whether the Plaintiff is entitled to be granted the Letters of Administration Yes, but jointly with as prayed. the Defendant.

3. What order ? As per final order.

4. The deceased expired on 16.08.2000. The Will of the deceased is shown to be executed on 28.12.1999. The original Plaintiff had no knowledge about the Will and hence she filed this Petition in 2001. It is the case of the Plaintiff that the only two heirs of the deceased are his widow and his sister. As per the Shia Law of Inheritance by which the parties are governed the widow gets 1/4th of the estate and the sister gets 3/4th of the estate as governed in Section 88 of the Muslims Personal Law. Mr. Shaikh on behalf of the Plaintiff relied upon the table of succession for sharers upon inheritance.

5. Further, the Will of a deceased Mohammedan is not required to be mandatorily Probated. [See. (1) Shaik Moosa Vs. Shaik Essa & Ors. ILR 8 Bom 241, (2) Mohamed Hussein Haji Gulam mohamed Ajam Vs. Aishabai 1934 [36] BLR 1155, (3) Mt. Azimunnisa Begum Vs. Sirdar Ali Khan & Ors. AIR 1927 Bom 387 and (4) re Hasima Latif & Ors. AIR 1962 Bom 227]. The Will of the deceased can be proved in any proceeding as any other document requiring proof by attestation. [See. Bai Jilekhabai Adreman & Anr. Vs. Competent Officer (Evacuee Interest Separation) & Ors. AIR 1961 Gujarat 85]. Consequently the Defendant can prove the Will of the deceased in this proceeding and hence Issue No.1 is framed as above.

6. It is the case of the Plaintiff that upon she proving the Will, she would be alone entitled to 1/3rd of the estate of the deceased as per his testamentary disposition. She would be further entitled to share in the remainder of the estate which cannot be disposed of by a Mohammedan under a Will. Hence in the remaining 2/3rd of the estate she would be entitled to 1/4th share and the present Plaintiff and the heirs shown in the Petition, who are the children of the original Plaintiff, would together be entitled to 3/4th of the remainder 2/3rd of the estate of the deceased. She claims that the estate of the deceased be administered accordingly under the Letters of Administration if granted by the Court.

7. Since the estate of the deceased shown in the schedule to the Petition is admitted by the Defendant and since the relationship between the parties is also admitted and it is not claimed that the original Plaintiff or the present Plaintiff is not a fit and proper person to administer the estate of the deceased, the only aspect which has to be seen is whether the Will produced and sought to be propounded by the Defendant has been a validly executed Will of the deceased.

8. Under these circumstances the Plaintiff has not led any oral evidence. The Defendant has examined the attesting witness and herself. The Defendant has produced the original