High Court

Legal Reasoning

(1) FA-214-2024 & ORS..odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADFIRST APPEAL NO.214 OF 2024ANDFIRST APPEAL NO.215 OF 2024ANDFIRST APPEAL NO.722 OF 2025Sunil s/o. Vitthal Shinde,Age: 55 years, Occ: Agril,R/o Sindon, Tq. & Dist. Aurangabad,At present Renukanagar, Garkhed ParisarAurangabad..Appellant(Orig. Applicant)Versus1.Ali Shan S/o. Noor Mohammad Shaikh,Age: 55 years Occ: Agril,R/o. Chitegaon, Tq. Paithan, Dist. Aurangabad2.Bebe Wd/o Noor Mohammad Shaikh,Age: 78 years, Occ: Nil.R/o. As above.3.Imtiyaz Bee @/o Peer Mohammad Shaikh,Age: 59 years Occ: Household,R/o. Shindon Tq/ & Dist. Aurangabad.4.Rabiyabee W/o. Vazir Shaikh,Age: 52 years, Occ: Household,R/o. As above.5.Hamsheerabee W/o Shaikh Chand,Age: 50 years, Occ: Household,R/o. Garkheda, Aurangabad.6.Shamshadbee W/o Latif Sayed,Age: 47 years, Occ: Household,R/o. Badgaon, Tq. & Dist. Aurangabad.7.Lailabee Shamat Shaikh,Age: 42 years, Occ; Household,R/o. Shindon Tq. and Dist. Aurangabad.8.The State of MaharashtraThe District Collector, Aurangabad..Respondents(R.No.1 to 7 are Orig. R. Nos.2 (2) FA-214-2024 & ORS..odtto 8 and R.No.8 is Ori. R.No.1.) …Mr. P. F. Patni, Advocate for the Appellant.Mr. Mohsin Khan, Advocate for Respondent Nos.1 to 7.Mr. V. S. Badakh, AGP for Respondent No.8.… CORAM : S. G. CHAPALGAONKAR, J.RESERVED ON :- 18th MARCH, 2025.PRONOUNCED ON:- 17th APRIL, 2025.JUDGMENT:- 1.All proceedings are arising out of common order dated30.09.2023 passed by Civil Judge Senior Division, Aurangabad.For better understanding, the details are mentioned in tabularform:First AppealNo.Civil M.A. No.RemarkFA/214/2024294/2022For issuance of Probate and Letter ofAdministration under Section 299 of theIndian Succession Act by presentappellantFA/215/2024293/2024For issuance of probate and letter ofadministration under section 299 of theindian succession act in respect ofamount and FD kept in bank by presentappellantFA/722/20252151/2021For issuance of heirship certificate inrespect of immovable properties andsuccession certificate in respect ofdeposits by Alishan and others.2.All three proceedings were taken up for common hearing anddisposal before Civil Judge Senior Division at Aurangabad, whoallowed Civil M.A. No.2151/2021 and directed issuance of heirshipcertificate in name of Alishan and others in respect of immovableproperties and succession certificate in respect of Alishan and (3) FA-214-2024 & ORS..odtothers in respect of Fixed Deposits at Maharashtra Gramin Bank,whereas rejected Civil M.A. Nos.293/2023 and 294/2023.3.The facts giving rise to present proceedings are summarizedas under:One Tajuddin Noor Mohammad Shaikh was scholar ofreligious scriptures of Hindu religion and renowned preacher(Kirtankar). Although he was Muslim by birth, he had developedinterest in Hindu scriptures since his young age and devoted insocial and religious work in the interest of community. Theappellant-Sunil Vitthal Shinde claims that Tajuddin Shaikh wasresiding with him as family member. Initially he came in contactwith appellant’s father and became family member. The appellantsince childhood devoted himself in assisting Tajuddin Shaikh.During the lifetime Tajuddin Shaikh purchased some propertiesout of his income and had maintained certain Fixed Deposits. Heexecuted two Will dated 11.12.2013 and 28.09.2020 andbequeathed his property to appellant. Tajuddin Shaikh died on27.09.2021 due to heart attack. After demise of Tajuddin Shaikh,Appasaheb Admane handed over appellant both Will. Accordingly,he claims for grant of Probate in respect of Will or Letter ofAdministration as per Will. 4.It is contention of appellant that Alishan and others have noright to seek heirship or succession certificate as Tajuddin Shaikh (4) FA-214-2024 & ORS..odthas executed Will and bequeathed his interest in movable andimmovable properties in his favour.5.Per contra, Alishan and others contested claim of SunilShinde contending that Tajuddin Shaikh never renounced Islam.During his lifetime, he maintained his family from his income. Hislast rites are performed as per Muslim rituals and dome isconstructed near his house, which is looked and managed byAlishan and others. They denied execution of Will and contendedthat appellant has created false and fabricated documents withintention to grab properties left behind by Tajuddin Shaikh.6.The Trial Court framed issues, recorded evidence of partiesand rejected claim of appellant highlighting certain doubtfulcircumstances as regards to Will relied by appellant and passedimpugned order.7.Mr. Patni, learned Advocate appearing for the appellantvehemently contends that late Tajuddin Shaikh never resided withhis family. At young age of about 18 years, he left home andresided in shelter of appellant’s family. The appellants from hisyoung age, remained in service of Tajuddin Shaikh. Hence, heexecuted his Will dated 11.12.2013 bequeathing his properties inthe name of appellant. The Will is duly notarized and signed bytwo witnesses. Second Will dated 28.09.2020 does not conflict with (5) FA-214-2024 & ORS..odtfirst Will and reiterates intention of Tajuddin Shaikh to bequeathproperties purchased by him in favour of appellant. There cannotbe dispute about valid execution of Will. The attesting witnessesare examined, whose testimony cannot be doubted. The physicaland mental condition of Tajuddin Shaikh at the time of execution ofWill is admitted to be sound. The disposition of property underWill needs to be respected. The circumstances considered againstgrant of Probate / Letter of Administration in favour of appellantdoes not exist. Mr. Patni in support of his contentions relies uponobservations of Supreme Court of India in case of Smt. Indu BalaBose and Others Vs. Manindra Chandra Bose and Another1,observations Allahabad High Court in case of Smt. Hadi Begum(Deceased by LR) Vs. Smt. Ruqqiya Sultana2 and lastlyobservations of this Court in case of Damodar KashinathRasane Vs. Smt. Shahajadibi and Others3.8.Per contra, Mr. Khan, learned Advocate appearing for therespondent nos.1 to 7 submits that apparently, perusal of both Willwould show that those are typewritten at a time. The contents areword to word same. The property which was not purchased orpossessed by Tajuddin Shaikh on the date of alleged execution offirst Will is made part of Will. Similarly, land which is transferredin the name of brother is shown in Will. The Stamp Paper on1AIR 1982 SC 133.21984 ALL.L.J. 408.3AIR 1989 BOMBAY 1. (6) FA-214-2024 & ORS..odtwhich alleged Will is typewritten is purchased by appellant. As perMuslim law, Will cannot be valid beyond 1/3rd of the propertypossessed by testator. On this count also, Will cannot be acceptedto be valid. The appellant failed to clear suspicious circumstances.Therefore, he urges to dismiss the Appeals.9.Having considered submissions advanced and on perusal ofrecord, apparently claim of appellant for issuance of Probate orLetter of Administration has been rejected on following counts:(i)There is no explanation for purchase of Stamp Paper in thename of appellant.(ii)As per Muslim law bequest beyond 1/3rd of total property isimpermissible.(iii)The Gut No.177 is given to respondents by gift, however,same is made part of bequest under Will.(iv)The property purchased in the year 2014 is made part ofWill alleged to be executed in the year 2013.10.Undisputedly, Tajuddin Shaikh was Muslim by birth.Although appellant contends that Tajuddin Shaikh professedHindu religion, there is nothing to show his conversion toHinduism. On the other hand, witnesseses of appellant namelyAppasaheb and Rajendra gave vital admissions, which depicts thatTajuddin Shaikh never renounced Muslim religion. The findingsrecorded by Trial Court on this issue does not require interference. (7) FA-214-2024 & ORS..odt11.Section 63 of the Indian Succession Act provides for modeand manner of attestation of Will. The onus to prove Will is onpropounder. The propounder has to establish execution of Will andremove suspicious circumstances surrounding execution of Will. Itis also necessary to establish the testamentary capacity andsignature of testator. The term suspicious circumstances has beenexplained by Supreme Court of India in case of Shashi KumarBanerjee & Ors. Vs. Subodh Kumar Banerjee & Ors.4. Thesuspicious circumstances may be as to genuineness of signature oftestator, condition of testator’s mind, the dispositions made in theWill being unnatural, improbable or unfair in the light of relevantcircumstances, or there might be other indications in the Will toshow that testator’s mind was not free. When circumstances arenot normal or normally expected of a normal person, it would betermed as suspicious circumstances. Upon discharge of such onus,the Court required to decide issue as to genuineness and dueexecution of Will. The Probate Court does not decide any questionof title or existence of property itself.12.In light of aforesaid parameters of law, it is to be find out ifappellant had discharged his burden to establish execution of Willfree from suspicious circumstances. The witness AppasahebAdmane deposed that Tajuddin Shaikh executed two Will dated4AIR 1964 SC 529. (8) FA-214-2024 & ORS..odt11.12.2013 and 28.09.2020 in his presence. The first will wasnotarized before Advocate Ankush Jadhav and second Will wasnotarized before Ulhas Kadam, which is singed by Tajuddin Shaikhand then by both witnesses. The Will was kept in his custody.After death of Tajuddin Shaikh, he informed appellant aboutexecution of Will and handed over original to him.13.The respondents have objected evidence adduced byappellant. Firstly, it is contended that Stamp Paper was notpurchased by Tajuddin Shaikh, but it was by appellant. Perusal offirst Will shows that stamp was purchased for appellant byTajuddin Shaikh. There appears signature of Tajuddin Shaikhbelow name of purchaser. The Trial Court observed that it waspurchased by appellant. On careful reading of document,contention of Mr. Patni, learned Advocate that this was purchasedby Tajuddin Shaikh for appellant appears to be more probable andacceptable. The findings of Trial Court on this aspect appears to beinconsistent to record or based on misreading of documents.14.The Trial Court relied upon second suspicious circumstanceas to genuineness of Will that Tajuddin Shaikh was not entitled tobequest in any case beyond 1/3rd of his estate as per Muslim law.The Trial Court rightly relied upon Chapter 18 of MohammedanLaw (Mulla), which suggests that power of Muslim to bequest hasbeen limited or restricted in two ways, namely, he cannot Will for (9) FA-214-2024 & ORS..odtmore than 1/3rd of his estate, and secondly, he cannot bequest to anheir validly, unless some conditions are fulfilled. The bequest to anheir is not valid unless the other heirs consent to the bequest afterdeath of the testator. If a Will, bequest, limited one third to astranger, it would be perfectly valid, binding on heirs and lawful,otherwise, it would be invalid, without the consent of heirs. Inlight of aforesaid provision, even it is assumed that bequest beyond1/3rd was invalid, there is no difficulty in accepting Will as valid tothe extent of permissible limit under Mohammedan Law. Mr.Patni has rightly relied upon observations of Division Bench of thisCourt in case of Damodar Kashinath Rasane (supra) in thisregard, particularly observations in paragraph no.17:“17. The second question which, no doubt, has been raised onbehalf of the defendants, for the first time, in this SecondAppeal can also be disposed of by us since it is a question oflaw and the matter is at large before us on all point of law.Ads pointed out earlier while summarizing the position oflaw, a widow's share in her husband's property is limitedonly to one-fourth of his estate, when there are no otherblood-relations of the husband left/ This will also mean thatwhen the sole heir left is the widow and the bequest of theentire property is made in favour of a stranger the bequestwill have to be upheld to the extent of the widow. There is noreason why such a consequence should not follow in law forever where the consent of the heir is needed to validate thebequest in excess of one-third that consent is required so thatthe heir or heirs concerned are not deprived of their rightfulshare in the estate. That righted share in the estate in thepresent case being only of the widow and limited only to onefourth of the unbequeathable estate of the testator, that is2/3rd of the estate, the plaintiff is entitled to only one-forth ofthe two-thirds of the said estate. In other words she isentitled only to one-sixth of the entire estate. This being thecase, the suit be decreed only to the extent of one-sixth of theland in dispute.” (10) FA-214-2024 & ORS..odt15.The next contention doubting genuineness of Will is that landGut No.177 was given by Tajudding Shaikh to his brother Alishan.Eventually, mutation entry was recorded. The appellant as well ashis witness Rajendra admitted mutation in favour of Alishan,which depicts that 62R land was allotted to him under partitiondeed and name of Tajuddin Shaikh was removed. Second Will hasbeen executed on 28.09.2020. Prior to that mutation EntryNo.2274 dated 01.04.2020 was certified as to partition and transferof land in favour of Alishan. It is accordingly submitted that oncesuch a transfer was effected, a Will executed at a later point intime would not have reference of its bequeathal to the appellant.Perusal of document, particularly second Will dated 28.09.2020depicts that reference as regards to land Gut No.177 is madestating that suit property is part of earlier Will dated 11.12.2013and then it makes reference of further estate to be bequeathedunder Will. It is true that, in said Will there is no reference ofgifting land Gut No.177 to Alishan. In natural course, TajuddinShaikh would have explained aforesaid fact. This circumstance isnot properly clarified by appellant.16.Last and most important objection is that Will dated11.12.2013 makes reference of land Gut No.2 to the extent of 40R.The certified copy of sale deed dated 12.05.2014 depicts thatTajudding Shaikh became owner of land after execution of Will (11) FA-214-2024 & ORS..odtdated 11.12.2013. No explanation is coming forward fromappellant as to how in the Will executed in the year 2013, there isreference of land purchased after six months of execution of Will.Mr. Patni, learned Advocate endeavours to explain that there wasagreement for purchase of land and Tajuddin Shaikh was awareabout its acquisition, hence reference is made. However, thisexplanation are not supported by documentary or oral evidence.The appellant never stated in his evidence that such agreementexisted prior to execution of Will. The vendors or witnesses of suchtransaction is not examined to clear aforesaid circumstances. ThisCourt, therefore, holds that appellant failed to remove suspiciouscircumstances as regards to mention of land Gut No.2 in Will dated11.12.2013.17.Mr. Khan, learned Advocate appearing for respondentspoints out that Will of 2013 and 2020 are word to word same anduses same font. There appears some substance in contention oflearned Advocate appearing for respondents. The first Will isexecuted in 2013, whereas second is executed in 2020. Noexplanation is coming forward as to how both Will are similar as toprint and font. Therefore, there is no reason to interfere inconclusion drawn by Trial Court.18.So far as grant of heirship certificate and successioncertificate in the name of Alishan and others vide Civil M.A. (12) FA-214-2024 & ORS..odtNo.2151/2021, there is no reason to interfere, since respondents arenatural successors of Tajuddin Shaikh, particularly when it is heldthat appellant failed to prove valid execution of Will in his favourand remove suspicious circumstances as to execution of Will.19.Consequently, First Appeals sans merits and accordingly,stand dismissed. (S. G. CHAPALGAONKAR)JUDGEDevendra/April-2025