Facts of the case
The defendant produced the Will of her deceased husband, whose marriage was registered under the Special Marriage Act. The court previously held that they would be governed by the Indian Succession Act for succession purposes, both intestate (inheritance in accordance with the law provided degree) and testamentary (inheritance through Wills). It was also held that although the deceased was a Muslim, once a Muslim marries under the Special Marriage Act, he is treated equally with persons of other communities married under the Special Marriage Act, and all provisions of the Indian Succession Act are applicable. Thus, the Will of such a Muslim would require to be probated. Aggrieved by this, the Petitioner applied for a review of the order.
Issue before the court
- Whether a Will by a Mohammedan who marries under the Special Marriage Act be required to be probated ?
Judgement
The court considered Section 213 of the Indian Succession Act:
213. Right as executor or legatee when established.
No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed. This section shall not apply in case of Wills made by Mohammedans...."
The plaintiff argued that by virtue of Section 213, the defendant, as a legatee, cannot establish her right in any court unless she probates the Will. However, the section only deals with the procedure for claimants, not imposing restrictions on a Mohammedan to have his Will probated. The court held that the defendant did not need to obtain probate of the Will because she was a Mohammedan, irrespective of the legislation under which she married.