Inexplicable and Tragic – Bombay High Court Delivers Judgement on Uncontested Petition Pending For 31 Years

Justice Gautam Patel said that there is a point of law involved but the answer is over a century old, "neither complex nor new." Despite this, the petitioners - two of them passed on and the other two in their eighties – were forced to wait endlessly to have their mother's wish fulfilled. To donate her estate to charity.

"The first oddity about the matter, and it is truly inexplicable, apart from being a tragic and terrible commentary on our justice delivery system, is that, though uncontested, the matter has been pending in this Court for the last thirty-one years…

There is indeed a question of law involved. But the answer to it is neither complex nor new. Indeed, that answer is even older than the Petition: the solution is from 1905. It is an answer that the Petition could have received very much earlier."

The Will was of Mumbai resident Rasubai Suleman Chinoy, who died on 10th October 1989. The document was drawn up in 1980, had no executors or witnesses. Through the Will, Chinoy wanted all the inheritance she received from her aunt to go back to the Charitable Trust, named after the Aunt.

Four of Chinoy's five children approached the court to ensure their mother's wishes were fulfilled. They had no claim in the Will, Justice Patel noted.

The case came before the court after the Bombay High Court's Registry expressed doubts about the validity of the Will as it lacks attestation by two witnesses and therefore does not conform to the requirements of Section 63 of the Indian Succession Act 1925.

Justice Patel framed two questions to be decided.

Whether Part VI of the Indian Succession Act 1925 applies to a person of this religious denomination, i.e. a Sunni Hanaf Mahomedan; and

Whether under the law governing Sunni Hanaf Mahomedans, there is any requirement of the attestation of a Will at all.

Justice Patel held that Section 63of the Indian Succession Act is dependent on Section 57 which does not mention a Mohammedan or any of his Sects. Thus section 63 would be inapplicable to a Will made by a Mohammedan. "Section 213 then tells us that such a Will does not compulsorily require probate," he noted.

Justice Patel relied then on the 22nd June 1905 judgement of Justice Badruddin Tyebji in the case of Aba Satar Haji Aboobuker. Even in the 1905 case, a question was posed by the Registry if  a Cutchi Memon's written will would be valid, even if it was not attested by witneses  was valid and could be executed.

"At this stage perhaps, I should enter only one solitary comment: nothing changes — even after 150 years," Justice Patel stated about the query put by the Registry.

Justice Tyebji had observed that there was nothing in the Mohammedan Law, making attestation of Wills compulsory.

"I am entirely bound by this decision. Even otherwise, I am in the most respectful agreement with it. And I must express my admiration for the approach adopted — especially the concluding paragraph where Mr Justice Tyabji observed that he had not the slightest doubt as to the position of law but took the matter in hand out of respect to the Registrar, who found himself in some level of doubt. That is an approach that I believe I must follow."

Justice Patel held that Rasubai was a Cutchi Menon, governed by the Mohammed Law as per the Cutchi Memon's Act of 1938 and therefore her Will did not require attestation. Justice Patel recorded the Testamentary Department's head's statement who confirmed that the Will shall be probated by 19th March 2021