In yet another of a court questioning instance of inexplicable listing of cases, a 31-year-old uncontested petition which was filed in 1990 came up for hearing before the Bombay High Court on Wednesday leaving the Bench perplexed (Mahomed Chinoy v. Rasubai Chinoy).
Justice Gautam Patel did not hide his surprise at the same, proceeding to record in his order that it was “truly inexplicable”.
“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. Their wait ends today,” the order said.
The question of law due to which the matter was pending was whether a will required attestation and whether the will was required in a written format under the Mahomedan law.
The will in question belonged to one Rasubai Chinoy who died in 1989 without appointing executors for her will executed in 1980.
The will specified that the inheritance along with income which Rasubai received from her paternal aunt was to be returned to her aunts’s charitable trust after her death. None of the petitioners claimed any part of it.
After the petition came to filed in the year 1990, the matter came up for hearing before Justice Patel only on account of an objection raised by the registry which raised a question of law.
The objection was that the will did not have attestation. Considering that there was a precedent of this High Court from the year 1905, Justice Patel proceeded to dispose of the petition.
He framed the issues to be considered by the Court.
- Whether portion of the act dealing with testamentary succession (Part VI) under the Indian Succession Act 1925 in fact 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 relied upon three provisions of the Indian Succession Act.
He concluded that Section 63 which specifies for attestation of a will by at least two witnesses does not apply to wills made under the Mahomedan law.
Section 213 which specifies requirement of the Court to establish the right of the executor of wills except the will made under the Mahomedan law.
Patel relied upon the judgment in the case In re Aba Satar Haji Aboobuker of 1905 which held that the since the Succession Act did not apply to the Mahomedan, and the Probate and Administration Act did not set a requirement for attestation in Mahomedan wills, there was nothing which makes it compulsory for Mahomedans to attest their wills.
Considering the facts of the present case were similar to the 1905 case, relying upon the judgment, Justice Patel granted probate in the present case. “At this stage perhaps I should enter only one solitary comment: nothing changes — even after 150 years,” he remarked.
“The question of law is thus decided. The objection of the Registry is answered. The Will, being of a Cutchi Memon, governed by Mahomedan law, does not require attestation,” Justice Patel held.