Joheb Hussain Shaikh vs Sarfarazi Ahmedullah Shaikh alias Sarfarazi Shaikh (Deceased) — Bombay HC (2025) — LawSathi Research

Joheb Hussain Shaikh vs Sarfarazi Ahmedullah Shaikh alias Sarfarazi Shaikh (Deceased) — Bombay HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Letters of Administration with Will annexed to be issued to the petitioner as per the Rules, having effect throughout the State of Maharashtra, subject to office verification that no cross petition or caveat is pending.

Issue for consideration

Whether the petition is tenable where no executor has been appointed under the Will and the petitioner claims as one of the representatives of the sole legatee. +1 more

Court's answer

The petition is tenable: no executor has been appointed under the Will and the petitioner is one of the representatives of the sole legatee under the Will.

Ratio / Principle

Delay in the petition stands explained under Rule 382 of the Bombay High Court (Original Side) Rules, 1980.

Key takeaways

Execution of the Will is proved on the affidavit of attesting witness Mohammad Kalim Mohammad Kasim Siddiqe (Form No. 102), who deposed that the deceased affixed his thumb impression in his presence and that the contents of the Will were read over to the testator before signing; there is sufficient compliance of Rule 419 of the Rules.ratio¶10
The petition is treated as uncontested: despite service, publication and affixture of citations, no one appeared to resist the petitioner's claim and no pending litigation pertaining to the same properties was brought to notice.ratio¶9

Detailed headnote1 paragraphs

Bombay High Court (Testamentary Department) — Testamentary Petition 62.TP/5241/2024 — Letters of Administration with Will annexed — Will of Sarfarazi Ahmedullah Shaikh alias Sarfarazi Shaikh executed at Mumbai on 20.01.2015 in English; testator died at Mumbai on 22-01-2015 — no executor appointed; petitioner Joheb Hussain Shaikh, one of the representatives of the sole legatee, petition held tenable — delay explained under Rule 382, Bombay High Court (Original Side) Rules, 1980 — execution proved by affidavit of attesting witness Mohammad Kalim Mohammad Kasim Siddiqe in Form No. 102 (thumb impression affixed in his presence; contents read over to testator), satisfying Rule 419 — shares of non-consenting heirs (Shakila Qudrat Ali, Mahar Mohd Hanib Bano, Naazparvin Abbas khan) paid/deposited (Rs. 4,00,000/- to each of two daughters; Rs. 2,00,000/- in cash to the third) — citations personally served, published (Chamber Order No. 499/2025) and affixed; no contest; petition treated as uncontested — petition granted; Letters of Administration with Will annexed to issue with effect throughout the State of Maharashtra, subject to verification of no cross petition or caveat.

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Before: Shri. P. A. Jagdale, Officer on Special Duty, With the Testamentary Department Date: 23rd December 2025

FOR COMPLIANCE:

TP/5241/2024 (AMH20210053261C202400036) with WILL/2088/2024

) ) Shri. Jayant Wani i/b Seema Hunnurkar ) Ld. Advocate for the Petitioner ) )

P.C.:

1) Petitioner, namely Joheb Hussain Shaikh, filed this petition, being the one of the legatees under the Will executed by Sarfarazi Ahmedullah Shaikh alias Sarfarazi Shaikh (herein after the same is referred to as “Testator”), for the grant of a Letters of Administration with Will annexed. The Said Testator said to have died at Mumbai on 22-01-2015.

2) Perused petition. Heard Ld. Advocate for the petitioner. Perused documents. Petitioner, filed the copy of death certificate, an identity proof of the testator, Will & petitioner's oath.

3) The petitioner has explained the delay vide Rule 382 of the Bombay High Court (Original Side) Rule, 1980(for short “Rules”).

4) No executor has been appointed under the Will. The petitioner is the one of the representative of the sole legatee under the Will. Hence, the petition is tenable.

5) Petitioner stated that the deceased left behind his last Will and Testament, which was duly executed at Mumbai on 20.01.2015, in English language. The Will is handed over separately for being filed and kept in a safe place in the Office of the Prothonotary and Senior Master, High Court, Bombay.

6) Ld. The advocate for the petitioner submits that the testator is survived by legal heirs, whose details are given in the petition’s paragraph No. 05, as per the provisions of Muslim Personal Laws. The petitioner affirmed that there are no other legal heirs of the deceased, except as mentioned in the petition.

7) Citation to non-consenting legal heirs of the deceased, namely Shakila Qudrat Ali, Mahar Mohd Hanib Bano and Naazparvin Abbas khan was issued. Naazparvin Abbas khan is served with the citation on 30.12.2024, as per the postal AD Card(Marked as Exh-D) to the affidavit of the bailiff dated 17.01.2025. Furthermore, the citation sent to Mahar Mohd Hanib Bano is returned with endorsement Insufficient Address. Other one legal heir, Shakila Qudrat Ali, unclaimed the postal envelop containing the Citation.

8) The petitioner states that he could not serve the citation upon Mahar

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Mohd Hanib Bano in regular Course. Hence, the petitioner has taken out a Chamber Order, having No. 499/2025, to serve the Citation to non-consenting legal heir of the deceased by publishing citation in the daily newspaper namely, 1) Free Sristi Mail (English) and 2) Nyaydhish (Hindi) on 10/10/2025,. Accordingly, affidavit of service has been filed by the Ld. Advocate for the petitioner regarding service vide Rule 400 of the Rules. However, nonconsenting legal heir did not resist the petition.

9) Citation was issued, which has been duly affixed on the conspicuous part of the Hon’ble High Court and notice board of the Collector’s Office at Mumbai and 14 days have been expired vide Rule 397(1) and (4) of the Bombay High Court (O.S.) Rules, 1980(for short “BHC Rules”) and an affidavit to that effect has been filed. Notice to collector has been issued vide Rule 396 of BHC Rules. Till today, no one appeared to resist the claim of the petitioner or nothing is brought to the notice regarding pending litigation pertaining to the same properties. Hence, the petition is treated as uncontested one.

10) The petitioner has filed the affidavit of Mohammad Kalim Mohammad Kasim Siddiqe one of attesting Witnesses to the Will, in form No.102 of Bombay High Court (Original Side) Rules, 1980. He deposed that deceased affixed his thumb impression in his presence. Hence, enough evidence is on record to accept the execution of the Will and petitioner is succeeded to prove the execution of Will. According to him contents of the Will were read over to the testator before signing the Will. Hence, there is sufficient compliance of the Rule 419 of the Rules.

11) Properties mentioned in the schedule-I of the petition are referred in the Will.

12) One of the legatee, namely Abdulsamdad, Shakila, has given consent to grant Letters of Administration to petitioner.

13) Other legatees, namely Shakila, Mahar, Naazparvin, have not given consents to grant Letters of Administration to petitioner. Petitioner filed an affidavit affirmed on 19.05.2025 and produced the documents stating that the amount due under the Will, has been deposited in the Bank Accounts of the these legatees. He deposed that an amount of Rs. 400000/- was paid to each daughters of the deceased namely Shakila, Mahar. According to him, Rs. 4,00,000/- was paid to Mahar Mohd Hanib Bano on 16^th August 2022 through the bank account bearing Savings Account No.003627023006. He deposed that a sum of Rs.2,00,000/- was paid in cash to Naazparvin Abbas Khan. He has produced her affidavit affirmed on 09.06.2023 as an acknowledgment of receipt of the amount, at Ex. “D”. Petitioner deposed that he paid Rs. 4,00,000/- to Shakila Qudrat Ali Shaikh on 16/08/2017 through his Bank Account no. 019405300008770. Copy of same is at Exhibit- B of the affidavit. In view of this affidavit and documents annexed thereto, it appears that

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statement of the petitioner about the payment of the Share of the nonconsenting legatees under the Will, vide paragraph No. 4 on the page No. 3/17 of the Will, has been satisfied.

14) Petitioner has executed the administration Bond in the prescribed format. Hence, following order:

ORDER

1) Petition is granted.

2) Office to issue Letters of Administration with Will annexed to the petitioner, as per the Rules, having effect throughout State of Maharashtra.

3) Before issuance of Letters of Administration with Will, the office to verify that there is no cross Petition is pending or caveat is filed. Office to act accordingly.

23^rd December 2025 Officer on Special Duty, with Testamentary Department