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Appellants: Bilquis Zakiuddin Bandookwala & Others
Respondent: Shehnaz Shabbir Bandukwala
Hon’ble Justice R.S. Dalvi, J
Date Of Appeal: 2010
Date Of Judgement: Thu Dec 16 2010
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.
The court considered Section 213 of the Indian Succession Act:
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.
Under Section 57 of the Indian Succession Act, the cases where probate is required are specified. The provisions apply to Wills made by Hindus, Buddhists, Sikhs, or Jains, but there is no restriction for members of the Mohammedan community regarding proving a Will only by obtaining probate from the court. Mohammedans are required to prove the Will in accordance with the Indian Evidence Act, similar to any other document.
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