Citing a century old judgment, the Bombay High Court on Wednesday reiterated that the Mohammaden law doesn't mandate written form of a Will and also an attestation by two witnesses. The HC, accordingly, allowed a plea filed by four siblings challenging the "objections" raised to the validity of the Will since last 31 years.
A single judge bench of Justice Gautam Patel in the opening part of his judgment noted that the plea that was filed way back in 1990 is pending only because of the objections of Registry. To this fact, the judge said, was a "tragic and terrible" commentary on the justice delivery system.
"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," Justice Patel said.
"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 this plea: the solution is from 1905. It is an answer that this plea could have received very much earlier," the judge added.
The bench further referred to the facts of the case, wherein a woman - Rasubai Chinoy, who died in 1989, had left a Will behind, wherein major chunk of the properties was to be given for charity.
Accordingly, Chinoy's children, four out of five, approached the HC registry for its validation but the office raised objections to the Will as it wasn't signed by two witnesses, mandatory as per the Indian Successions Act of 1925.
The matter has been pending in the HC since 1990 and Justice Patel took up the same recently.
To decide the matter, Justice Patel first referred to the provisions of the Act of 1925. "The wording of the provisions makes it abundantly clear that they only apply to a Hindu, Buddhist, Sikh or Jaina. The provisions of this act do not apply to Mahommedan," Justice Patel noted.
The judge, while referring to the Personal Laws said that the Mohammaden law allows a Will to be made either verbally or in writing.
"Mahomedan law does not demand that a Will take a written form. It does not demand any particular form at all. The commentary says that even a
verbal declaration is sufficient," the judge held.
The judge then cited a century old judgment written by Justice Badruddin Tyabji on 22nd June 1905.
"I am entirely bound by Justice Tyabji's decision. And I must express my admiration for the approach adopted wherein 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," the judge said while disposing of the matter.
Meanwhile the judge also asked the BMC to grant time till March 24 to the siblings so that they can pay the property tax of Chinoy's flats, calculated upto Rs 2 lakh.
