The Bombay high court on Wednesday put an end to a 31-year wait for the probate of a will after a non-contested petition was submitted. The HC ruled that a Mohammedan’s will would not require the attestation of at least two witnesses. A Cutchi Memon woman made a will in 1989, bequeathing her estate, which included a large property.
The will was written by a Cutchi Memon who died in 1989 and left her estate to charity, which included a huge property near Masjid Bunder. Her four brothers, who had relocated the HC in 1990, had made no claim to it.
There was an “oddity,” according to Justice G S Patel’s order. “The first oddity about the case, and it is really incomprehensible, aside from being a sad and unfortunate commentary on our justice delivery system, is that, despite being uncontested, the matter has been pending in this court for the last thirty-one years,” he wrote in the order, which was made public on Thursday.
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In 1980, the will was carried out. She had left no executors in place. Four of her five children are petitioners. They were searching for letters of administration of the estate. The fifth, a son, lives in Pakistan’s Karachi.
The petitioners’ counsel, Jai Munim, argued that they were bound by Sunni Hanafi Mohammedan law and that the will submitted to the HC was not attested by two witnesses. Two of the four petitioners had died during the three decades, and the other two were in their 80s.
The will was questioned by the HC registry because it lacks attestation by two adults as witnesses, as mandated by section 63 of the Indian Succession Act, 1925. “Cannot blame the registry…the objection poses a question of law,” Justice Patel said. However, he noted that this approach to the legal problem was “neither complicated nor novel.” “ The answer is much older than the petition: the solution is from 1905.” “It is an answer the petition could have received much earlier.”
“The rigour of section 63 of the Indian Succession Act, 1925, does not extend to wills made by a Mohammedan,” the HC said after analysing the legislation and drawing on pre-Independence decisions. Cutchi Memons, according to the HC, is governed by Mohammedan law.
In June 1905, Justice Badruddin Tyabji in a similar case of probate of the will of Aba Satar, also a Cutchi Memon, had in a similar doubt expressed by the registrar, said, “There is nothing in the Mohammedan law which requires attestation of wills…a document which is the will of a Mohammedan gentleman requires to be proved by our Anglo-Indian Law of Evidence in the same way as any other document, but it does not require to be attested, as far as Mohammedan law is concerned.”
According to Justice Patel, it is evident in Mulla’s Treatise that “Mohammedan Law does not require that a will take a written form, it does not demand any specific form at all.” According to the commentary, even a verbal statement is appropriate. What is required is to determine the testator’s intent.”
The HC certifies the legitimacy and genuineness of a will by issuing probate. It guarantees the distribution of property and assets according to the terms of the will until it is released.
The petitioners’ law firm, Bachubhai Munim, also claimed that civic property tax arrears of over Rs 2 lakh were due on March 12 but could not be charged because bank accounts had been frozen due to a lack of probate.
In a separate order issued on Thursday, Justice Patel ordered that property taxes be paid in full by March 24 and that no arbitrary action by BMC is taken in response to the warrant of attachment.
A probate will be released on March 19, according to an HC officer from the testamentary division (which deals with people’s last wills).