Hameed Jaffar Ahmed Ibrahim Mandeel Vs Farhat Mehdi Mandil and 10 Ors.

osapp434

1

ssp

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 434 OF 2016 IN
MISC.PETITION (L) NO.1731 OF 2014

¶5

Hameed Jaffar Ahmed
Ibrahim Mandeel ...Appellant
vs.
Farhat Mehdi Mandil
and others...Respondents

¶6

Mr.Uday Bobade a/w Ms Aditi Bhat i/b Mr.Yatin R.
Shah for the appellant

¶7

Ms J.Sidhwa a/w Mr.Manish P. Rao i/b Bina Rao & Co.
for the respondent Nos.1 to 4.

¶8

CORAM : A.S.OKA, &
 A.A.SAYED,JJ.

¶9

 DATE : JULY 27, 2016

¶10

P.C.:

¶11

1The submissions of the learned counsel for the
parties were heard yesterday. With a view to
appreciate the submissions made across the bar, a
brief reference to the facts will be necessary.

¶12

2By the impugned order dated 11th March 2016, the
learned Single Judge has dismissed the Miscellaneous
Petition (L)No.1731 of 2014 filed by the present
appellant. The said Miscellaneous Petition was
filed by the present appellant for revocation of the
probate granted by this Court on 31st March 2004 in
respect of the last Will and Testament dated 19th
September 2003 executed by one Shri Mehdi Mandil

¶13

2 osapp434

¶14

(for short `the Testator') who died on 3rd October
2003. The third and fourth respondents herein are
the executors appointed under the said Will. The
first respondent is the widow of the Testator. The
second respondent is the daughter of the Testator.
The third and fourth respondents are the executors
appointed under the said Will. Probate has been
granted to the third and fourth respondents in
respect of the said Will. The fifth to fifteenth
respondents have supported the appellant in the
petition for revocation. By the impugned order, the
learned Single Judge rejected the prayer for
revocation of the said probate.

¶15

3The learned counsel for the appellant has taken
us through the impugned order. The submission of
the learned counsel for the appellant is that under
the Shia Laws of Inheritance, the appellant and the
fifth to fifteenth respondents are the sharers who
have a share in the estate of the deceased Testator.
His contention is that as the appellant and the
fifth to fifteenth respondents had a caveatable
interest, citation ought to have been served upon
them. The submission is that as the citation was
not served, they could not file caveat and could not
contest petition for probate. The learned counsel
for the appellant relied upon the Principles of
Mahomedan Law as laid down by Indian Muslim
Personal Law Board. His submission is that under
Mahomedan Law, there is an absolute bar for making a
bequest of more than one third of the estate of the
Testator. His submission is that under the law of

¶16

3

¶17

osapp434

¶18

succession, the daughter of the deceased Testator
will inherit one half of the estate and a wife is
entitled to one eighth of the estate and the rest of
the estate will be inherited by the co-sharers. He
submitted that the learned Single Judge has gone
only by the opinion expressed in the Commentary of
“Mulla” on Mahomeden Law 1990 edition. The learned
counsel for the appellant relied upon the decision
of the learned Single Judge of this Court in the
case of Yasin Imambhai Shaikh (deceased by L.R's)
vs. Hajarabi and others1in support of his
submission that the bequest made in excess of one
third cannot take effect unless such a bequest is
consented to by the heirs after the death of the
Testator. The learned counsel for the first to
fourth respondents relied upon clauses 87 and 88 of
Chapter VIII under the Shia Laws of Inheritance in
Mulla's Principles of Mahomedan Law and submitted
that the argument regarding the existence of the
caveatable interest by the appellant has been
rightly rejected by the learned Single Judge.

¶19

4We have carefully considered the submissions.
We have perused the impugned order. In paragraphs 5
and 6 of the impugned order, the learned Single
Judge has reproduced the submissions canvassed by
the learned counsel for the appellant. Paragraphs 5
and 6 read thus:

¶20

“5However, the point that Mr.Bobade for
the petitioner canvasses is that under

¶21

1 AIR 1986 BOMBAY 357

¶22

4 osapp434

¶23

traditional Shia Laws of Inheritance, the
Petitioner and respondent Nos.5 to 15 are
all, what he calls “sharers” and have a pre-
defined fractional share in Mehdi's estate.
If he is right, and they do, they undoubtedly
have a caveatable interest, and citations
ought to have been served on them; and,
consequently, since that was not done, the
revocation Petition would have to succeed.
If he is not right in his submission,
however, the Petitioner and his supporting
Respondents cannot be said to have any
caveatable interest at all, and the
Revocation Petition must fail.

¶24

6It is not in dispute that Mehdi's
parents predeceased him, and that he was
survived by the 1st Respondent, his widow
Farhat, and the 2nd Respondent, his daughter,
Mehjabeen. In Mr.Bobade's submission, in
Shia Law the shares of siblings are
predefined. He bases this submission on a
table of sharers in Shia Law to be found in
Mulla's Principles of Mahomedan Law (19th
Edition, 1990). That table relates to Sn.90
of the commentary.”

¶25

5We must note here that what is recorded in
paragraphs 5 and 6 clearly show that before the
learned Single Judge, the appellant did not rely
upon the principles of Mohamedan Law in the
compilation published by the All India Muslim

¶26

5 osapp434

¶27

Personal Law Board, and in fact, relied upon
Mulla's Principles of Mahomedan Law 19th editions.

¶28

6At this stage, it will be necessary to make a
reference to clauses 87 and 88 in Chapter VIII of
the Mulla's Principles of Mahomedan Law. The title
of the Chapter is “Shia Law of Inheritance”. Clauses
87 and 88 read thus:

¶29

“87. Division of heirs.- The Shias divide
heirs into two groups, namely, (1) heirs by
consanguinity, that is, bold relations, and
(2) heirs by marriage, that is, husband and
wife.

¶30

88.Threeclassesofheirsby

¶31

consanguinity.- (1) Heirs by consanguinity
are divided into three classes, and each
class is subdivided into two sections. These
classes are respectively composed as
follows:-

¶32

I.(i) Parents;

¶33

(ii)children and other lineal

¶34

 descendants h.1.s.

¶35

II.(i) Grandparents h.h.s.(true

¶36

 as well as false);

¶37

 (ii)brothers and sisters and

¶38

their descendants h.1.s.

¶39

III.i)Paternal, and (ii)

¶40

 maternal, uncles and aunts, of the deceased
and of his parents and grandparents h.h.s.,
and their descendants h.1.s.

¶41

6

¶42

osapp434

¶43

(2)Of these three classes of heirs, the
first excludes, the second from inheritance,
and the second excludes the third. But the
heirs of the two sections of each class
succeed together, the nearer degree in each
section excluding the more remote in that
section (Baillie, II 278, k 280, 285].

¶44

7We must note here that the appellant is the
real brother of the deceased testator. We must also
note that in the petition filed by the appellant, it
is claimed that fifth to eleventh respondents are
also brothers and sisters of the deceased. In
paragraph 8 of the impugned order, the learned
Single Judge has observed that as between the main
classes, each superior class eliminates and excludes
the following class. As pointed out earlier, heirs
by consanguinity have been divided into three
classes. First class consists of parents, children
and other descendants, the second class consists of
grandparents, brothers and sisters and their
descendants. The learned Single Judge also referred
to clause 97 of Shia Law of Inheritance dealing with
the rules of succession by observing that if there
are no heirs of the first class, the estate
(excluded share of the husband or wife) devolves
upon the heirs of the second class. The learned
Single Judge also noted that in view of clause 89, a
spouse is never excluded from succession but that
he or she inherits together with the nearest heirs
by consanguinity. Thereafter, the learned Judge
referred to Clause 90 and came to the conclusion

¶45

osapp434

¶46

7

¶47

and in our view rightly, that when there is a lineal
descendant, the wife will get one eighth share. The
learned Single Judge rightly observed that the table
incorporated in Clause 90 is only like a ready
reckoner. The learned Judge has rightly recorded a
finding that the appellant and the supporting
respondents would fall in the class 2 of clause 88.
He rightly observed that as the deceased testator
was survived by a widow and a daughter, the
appellant and the supporting respondents who were
falling in class 2 in clause 88 will stand excluded.
That is the reason why he came to the conclusion
that neither the appellant nor fifth to fifteenth
respondents can be said to have caveatable interest
and they cannot be said to be heirs or sharers. We
must also note that the learned Single Judge also
dealt with the arguments advanced on the basis of
the clauses 117-118 in Mulla's Book. In fact, said
provisions could not have been invoked by the
appellant and the fifth to fifteenth respondents
without establishing that they were the heirs.

¶48

8The learned Single Judge also noted the
argument that though the probate was granted on 30th
June 2004, the petition for revocation was filed by
the appellant on 14th November 2014. In paragraph 17
of the impugned order, the learned Single Judge has
taken a note of objectionable allegations made by
the respondents in the Miscellaneous Petition filed
by the appellant. He referred to the allegation
contained in affidavit of the eighth respondent
that the second respondent was an illegitimate

¶49

8 osapp434

¶50

daughter of the Testator and for the reasons
recorded in paragraph 18, held that no credence can
be given to the statement made in the affidavit
especially when alleged illegitimacy was not made a
ground of revocation.

¶51

9In our view, the learned Single Judge has
rightly held that neither the appellant nor the
fifth to fifteenth respondents have a caveatable
interest. Therefore, we see no merit in the appeal
and the same is dismissed.

Hameed Jaffar Ahmed Ibrahim Mandeel v. Farhat Mehdi Mandil and 10 Ors.

Case brief

What is this about?

What did the court decide?

Hameed Jaffar Ahmed Ibrahim Mandeel v. Farhat Mehdi Mandil and 10 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Altamount Road Area Citizens Committee and Anr. Vs the State of Maharashtra

Rabindra Nigam and Anr. Vs Banoo Nusserwanji Cama and 7 Ors.

Purshottam Vishandas Raheja Vs Ahsh Shrichand Raheja and Anr.

Atul Vora Vs Union of India and 3 Ors.

Shyamsundar Satyanarayan Agarwal Vs the State of Maharashtra and Anr.

Virbhadra Shattu Chougule Vs Union of India and Ors.