:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY TESTAMENTARY TESTAMENTARY & INTESTATE JURISDICTION & INTESTATE JURISDICTION & INTESTATE JURISDICTION MISC. MISC. MISC. PETITION NO. 5 OF 2007 PETITION NO. 5 OF 2007 PETITION NO. 5 OF 2007 IN IN IN PETITION PETITION PETITION NO. 786 OF 1994 NO. 786 OF 1994 NO. 786 OF 1994 Shahenshahbegum alias Sona Diljag. ... Petitioner. V/s. Rehana Nasruddhin Abdul Karim & Ors. ... Respondents. Ms. Meena Kshirsagar i/b. S.R. Mishra for the Petitioner. Mr. Anuj Narula i/b. Jhangiani Narula & Associates for the Respondents 1 and 5. Mr Shaikh Yusuf i/b. S. Mahomedbhai & Co. for Respondents 2 to 4. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 09TH 09TH 09TH JANUARY 2009. JANUARY 2009. JANUARY 2009. P.C. P.C. P.C. : : : . When this matter was placed for orders today I enquired from the parties whether there is any settlement and it is reported that no settlement is possible. Further, Mr. Narula states that the Petitioner’s Advocate forwarded a copy of some affidavit which the Petitioner seeks to rely upon but it is fairly stated by the Petitioner’s Advocate that no such affidavit is being tendered on record even if copy is served on the other side. Thus, it is not placed on record. 2. In such circumstances, on the available material and on the basis of oral arguments canvassed prior to the Vacation that this order is passed. :2: 3. The Petition is filed to revoke the grant of Probate which has been issued by this Court on 1st March 1995 in Probate Petition No.786 of 1994. That grant is in respect of a Will left by the deceased Haji Mastan Mirza. The deceased expired on 25th June 1994. The Will based upon which the Probate is claimed and granted is dated 19th June 1992. 4. The Petitioner claims to have a caveatable interest in the estate of the deceased. She claims to be the widow of the deceased. She states that the marriage between herself and the deceased was solemnised at Bombay on 27th February 1984. The marriage was solemnised at Juhu, Bombay. She claims that thereafter, the deceased and herself resided as husband and wife. It is alleged in the Petition that the family and social circles recognized the deceased and the Petitioner as husband and wife. They were aware that the deceased had married her. However, suppressing this marriage and without disclosing to this Court that the Petitioner is the widow, the probate has been claimed by one Rehana Nasruddin Abdul Karim and one Usman Shariff Kadar Shariff. It is stated that said Usman had expired. Both approached the Court claiming to be the Executors of the Will of the deceased and have obtained this Probate. 5. It is alleged in the Petition that the said Usman :3: and Rehana are in no way concerned with the deceased. They are not the heirs and legal representatives of the deceased. On the other hand, Respondent Nos. 2 to 4 to this Petition are the daughters of the deceased whereas, Respondent Nos.1, 5 and 6 are the children of one Nasruddin Abdul Karim who was a servant of the deceased. It is alleged that leaving out the daughters so also the Petitioner, the deceased could not have bequeathed the estate to a servant and his family. It is alleged that the deceased was a owner of the property at Warden Road, Mumbai so also an Agricultural land at Navsari in the State of Gujarat. He had several other properties, both moveable and immovable. It is alleged that only in the first week of June 2006 the Petitioner became aware of this grant and that is how she made enquiries and addressed letters so also issued a public notice. 6. In paragraph 10 of this Petition, it is alleged as under :- " The Petitioner states that the Respondent No.1 and one Usman Shariff Kadar Shariff made the false statement on oath that the deceased was widower when in fact the Petitioner is lawfully wedded wife and she is living. The Petitioner states that the said Will is forged and fabricated. The Petitioner states that the circumstances surrounding the signing of the alleged will are totally un-natural. :4: The Petitioner further states that Respondent No.1 and the said Usman Shariff Kadar Shariff suppressed the facts about the Petitioner being the lawfully wedded wife of the deceased and even did not name her in the petition as the legal heirs not served any papers and proceedings any citation upon the petition. The Petitioner states that the Respondent No.1 and the said Usman Shariff Kadar Shariff and Respondent Nos.2 to 6 colluded with each other and obtained the said probate on 1.3.1995 in Petition No. 786 of 1994. The Petitioner states that the alleged Will and Testament of Shri Haji Mastan Mirza is forged and fabricated document. The Petitioner states that there is no reason for deceased to bequeath the property to his servant and the family member of the servant and excluding the wife. The Petitioner states that she had a excellent relationship with her husband the deceased till last. The Petitioner states that the world and society at large during the life time of deceased always treated the deceased and the Petitioner as husband and wife. The Petitioner states that the legatee mentioned in the said alleged Will one Nasruddin Abdul Karim and his family members were the servant working for deceased. The Petitioner states that in the circumstances the said Will is totally unnatural and not a genuine document. The Petitioner states :5: that Respondent No.1 has committed offence U/s. 282 of Indian Succession Act, 1925. The Petitioner states that the Respondent Nos.2 to 6 have colluded with Respondent No.1 and one Mr. Usman Shariff Kadar Shariff now deceased to obtain the said probate fraudulently and deprived the Petitioner of her legitimate right as the widow of the deceased. The Petitioner is entitled to her share in the property of the deceased." 7. Upon these pleas and alleging that the First Respondent had a fraudulent intention of depriving the Petitioner of her rights in the estate of the deceased so also questioning the Will, that the Revocation Petition has been filed. 8. All that is Annexed to this Revocation Petition is a translation of a Urdu document purporting to be issued on 26th April 2006 by the Chief Qazi of Bombay evidencing allegedly the Nikah of the Petitioner and the deceased. Thereafter, copy of a public notice is annexed and surprisingly, a letter has been addressed by the Petitioner to Respondent Nos.2 to 4 who are neither Executors nor Petitioners/parties to the Probate Petition. 9. An affidavit in reply has been filed by Respondent Nos.2 to 4, who claim to be the daughters of the deceased. However, it is pertinent to note that while challenging :6: the Will they do not acknowledge and admit that the Petitioner is the legally wedded wife of the deceased. In fact, they deny that the Petitioner was ever married to the deceased. It is stated that the photographs relied upon do not include any of the family members, including the daughters of the deceased. It is alleged by the daughters that the deceased was a political and social figure. He was head of a political party and therefore came in contact with lot of people and workers. Taking advantage of such contact, the Petitioner is pushing forward her case of being legally wedded wife of the deceased. In paragraph 6 of the affidavit in reply filed on 9th August 2007, Respondent Nos. 2 to 4 contend that the late Haji Mastan Mirza never introduced the Petitioner to the deponent of this affidavit as his wife. The Petitioner has not even attended the funeral or taken part in the last rites of the deceased. It is alleged that the sisters are having the property dispute with the family of the caretaker of the deceased which has been publicised largely by the media. In these circumstances, the Petitioner is taking advantage of being same way associated with the deceased and the Petition is containing false allegations and therefore, should be dismissed. 10. An affidavit has been filed to oppose this Petition even by Respondent Nos. 1 and 5. Respondent No.1 is the Original Petitioner No.2 in Probate Petition No.786 of :7: 1994. She states that the Probate Petition was filed in this Court after the deceased expired on 25th June 1994. However, this Petition to revoke the grant is filed after 13 years of the death of the deceased and nearly 12 years from the date of the grant. The Petition, therefore, suffers from gross and un-explained delay and latches. It should be dismissed on this ground alone. 11. The First Respondent has, in paragraph 5 of the affidavit, questioned the authenticity and genuineness of the purported Nikahnama - Exhibit 2 to the Petition for revocation. It is specifically alleged by her that the marriage documents refer to the deceased as one Haji Mastan Mirza, son of Abdul Kadar. She states that the deceased was known as Haji Mastan Mirza, son of Hyder Beg Mirza. This is a fact admitted inasmuch as it is reflected even in the death certificate produced by the Respondent. Without prejudice to this statement, it is alleged that the age of the bride groom in the Nikahnama is shown as 65 years in the year 1984. However, Respondent No.1 states that the deceased was 68 years of age at the time of his death on 1994. That means he was only 58 years and not 65 years of age at the time of his alleged marriage with the Petitioner. Further, it is alleged by her that the residential address is shown as Juhu, Mumbai but the deceased always resided either at Crawford Market, Bombay or at Chowpaty (Bombay Garage) and thereafter, at Warden Road. The deceased Haji Mastan :8: Mirza has no property or house in Juhu, Bombay. Thus, it is some other Haji Mastan Mirza, who is allegedly married to the Petitioner and not the deceased. 12. Another fact which has been pointed out is that the name of the bride is written as Shahensha Begum Nizami. The Petitioner is not described as Shahensha Begum Nizami. At the time of the marriage, the bride allegedly resided at Juhu Scheme, Vile Parle whereas the Petitioner claims to have her residential address at Andheri (West), Oshiwara as stated in the cause title. The bride’s age is shown as 21 years whereas the translation mentions the age of the bride as 30 years. If the bride was aged 21 years in 1984, then she should be 44 years in 2007. However, the Petitioner claims to be aged 52 years. Therefore, apart from these relevant details, even the signature appears to be forged, is the contention. However, it is highlighted that if the original document is sought to be relied upon, then, there is no need of same to be attested by a Notary or otherwise. 13. Therefore, the endorsement of the Notary is also questioned and all the allegations in the Revocation Petition are specifically denied. Further, Respondent No.1 has disclosed the details of the assets and properties left behind by the deceased. It is, in such circumstances, that it is alleged that the purported Urdu Nikahnama is false, bogus, fabricated and a got up and :9: sham document. It is also contended that Respondent No.1 and Usman Shaikh, who are the Original Petitioner in the Revocation Petition are related to the deceased. Usman Shaikh was related to the wife of the deceased, whose name was Safrabi. Thus, he was the nephew and the First Respondent is the daughter of the Haji Mastan Mirza and wife Safrabi. In such circumstances, it is urged that the Petitioner is a stranger to the family. All other relevant details with regard to the life of the deceased have also been set out in this affidavit. 14. It is pertinent to note that the Petitioner files an affidavit on 21st January 2008. The Petitioner has not denied any of the averments in the First Respondent’s affidavit in reply although the same was filed as early as on 5th October 2007/12th March 2008. All that the Petitioner would urge is that she is filing an affidavit on 21st November 2008 pursuant to the developments in Court during the hearing of this Petition. I had already noted the submission of Mr. Mishra, appearing for the Petitioner and when he sought to rely upon the Nikahnama and other documents, I had refused to do so in the absence of they being placed on affidavit. It is in response to the observations in the order dated 24th October 2008 that the Petitioner has filed this further affidavit. She has, in the affidavit dated 21st November 2008 once again reiterated that she is the widow of the deceased and claimed that she was married with him on 27th February :10: 1984, according to Muslim Rights. She purports to produce the original Nikahnama. She states that after this marriage, the Petitioner and the deceased stayed together as husband and wife for 10 years. It is stated that she and the deceased stayed together at Palm Street, Juhu, Mumbai - 400 049. She states that the marriage was solemnized and performed by Chief Qazi and he has filed an affidavit. She has also filed affidavit of some close persons and political workers, who claim to have known the Petitioner and deceased as husband and wife. 15. Respondent No.5 has filed an affidavit and while reiterating the contents of the earlier affidavit by Respondent Nos. 1 and 5, they have pointed out that none of the documents which are annexed to the further affidavit of the Petitioner can be relied upon. It is stated that the address on the stamp of the Nikahnama refers to the city as Mumbai. It is stated that in 1984, Bombay was not known as Mumbai. Further, it is stated that the Petitioner has not filed any affidavit of those, who were present at the Wedding/Nikah of the Petitioner and the deceased. Lastly, it is pointed out that the affidavit of the Qazi also cannot be relied upon. He is aged 54 years in 2008 which means he was about 38 years of age at the time when he performed the Nikahnama. It is doubtful as to whether he recollects with exact details, the date on which the Nikah was performed by him. :11: 16. I have perused the entire material placed before me with the assistance of Mr. Mishra and Mr. Narula, who appear for Respondent Nos. 1 and 5. I have also perused the relevant statutory provisions. 17. The law on the point is well settled. The grant can be revoked, provided, the Court is satisfied that any of the causes set out in the said Petition can be termed to be a just cause. The Application for Revocation must make out one of the just cause as enumerated in Section 263(a) to (e) of the Succession Act, 1925. 18. On perusal of these principles, it is clear that Order U/s. 263 cannot be passed merely because there are allegations made in the Revocation Petition. There has to be some material produced to substantiate these allegations. 19. In the present case, apart from gross delay and latches, even on merits, the version of the Petitioner is doubtful. I have referred to the allegations and denials specifically only to high-light the fact that the Petitioner has approached the Court 23 years after her alleged marriage with the deceased and nearly 13 years after his death. She has not given any explanation as to why she was not in touch with the family or was unaware of the death of the deceased or whether she could have or could not have attended the funeral and performed other :12: rights. In fact, the family including the daughters of the deceased have stated on oath that the Petitioner was never married to their father. They have denied that the marriage was performed or that the Petitioner was treated as the wife of the deceased. Each one of them have placed their version on record which has been adverted to by me hereinabove. The Petitioner, apart from producing the supporting affidavit of some political workers and alleged friends has not at all being able to substantiate her marriage/nikah with the deceased. The version of the Petitioner is not reliable and trustworthy. There are good reasons for not accepting the version of the Petitioner. I am in agreement with Mr. Narula that the Urdu translation of the Nikahnama so also the alleged Nikahnama does not evidence that the Petitioner and the deceased were married with each other. The Nikahnama is allegedly witnesses by one Mohd. Yusuf, who is supposed to be residing in Andheri. Other witness is one Shafuddin but barring his name no other details including his residential address are stated and set out in the Jamat Marriage Memorandum. Further, the place of marriage itself is said to be Juhu - near Chandan The deceased was known as Haji Mastan Mirza, son of Hyder Mirza whereas the groom is shown as Haji Mastan Mirza, son of Abdul Kadar and the residential address is written as 14, Farm Stand, Juhu, Juhu Scheme, Mumbai. The address of the Petitioner is shown as Juhu Scheme, Ville Parle, Mumbai. The name and address of the Vakil is that of Mohd. Shahabuddin, :13: Jaliwali Masjid, Andheri (West), Mumbai. It is clear from the above that the name of the deceased and that of the groom does not tally with the details set out in the affidavit in reply and documents referred to by the Respondents, apart from the other doubts raised on record. Therefore, neither the Urdu documents nor the affidavit of Mohd. Farooque, who has allegedly performed the Nikah is of any assistance to prove the marriage of the Petitioner with the deceased. Even, in the affidavit of the Petitioner, said Qazi names the deceased as Hazi Mastan Mirza, son of Abdul Kadar. Therefore, leave alone referring the deceased as Haji Mastan Mirza, the affidavit of the Qazi states names the bridegroom as Haji Mastan and the bride as Shahensha Begum. The affidavit is silent with regard to other details. The affidavit of one Daulat Ram Kawle, claims to have known one Haji Mastan, son of Abdul Kadar. It states that the Dalit Muslim Minorities Suraksha Mahasangh was a political party of which this Daulat was a General Secretary. He used to frequently visit Haji Mastan Mirza, son of Abdul Kadar. This is no proof and does not establish that both Haji Mastan Mirza and Haji Mastan, son of Abdul Kadar are one and the same. Now, the Petitioner has filed this affidavit only to show that she was also known as Smt. Shahensha Begum alias Sona Diljag. The other affidavit also is of some political worker but it does not state anything about the marriage/nikah. In these circumstances, these supporting affidavits cannot be relied upon. :14: 20. It is pertinent to note that the Petitioner has not dealt with leave alone denying the statements made on oath by Respondent Nos. 1 and 5 and 2 to 4 in their affidavits. She has not bothered to deal with specific allegations of fabrication and fraud in any relation to the Nikahnama produced by her. All this is eloquent enough and would show that apart from delay and latches, the version of the Petitioner cannot be relied upon to conclude that the grant is vitiated in any manner much less on account of fraud as contended by her. 21. In the result, the Petition fails and is accordingly dismissed. 22. In the circumstances, there will be no order as to costs. It is clarified that these observations are made only for the purpose of the disposal of the Petition and will not prejudice the rights and contentions of parties to the pending Original Side Suit No.1505 of 2006. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)