kbp 1 56-04.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION SUIT NO.56 OF 2004 IN PETITION NO.306 OF 2003 Rukhasana A. Natalwala and anr. ..Plaintiffs Vs. Ali Asgar Natalwala ..Defendant ......... Mr.Niranjan Lapasiya i/b.M/s.Niranjan & Co., for the plaintiffs. Mr.Tushar Gujjar a/w.Ms.Aditi Chavan i/b.Ashwini Ankhad & Asociates, for defendant. ......... CORAM : A.S.OKA, J.. DATE : 18 th December, 2009. JUDGMENT : 1] The petitioners/plaintiffs filed this petition/suit for probate of the last Will and Testament dated 15 th April, 1998 as well as a Codicil of Abbas Ali Hussain Natalwala. He died on 11 th February, 2003. The petitioners are the executrix appointed under the Will. 2] The defendant entered a caveat. In the affidavit in support of the caveat, kbp 2 56-04.sxw the defendant contended that the petition was not maintenable and that he was challenging the Will as well as the Codicil. He contended that the Will is forged. The issues were settled on 11 th February, 2008 which read thus: “1. Whether the petitioners prove that the Will dated 15 th April, 1998 was valid and properly executed last Will of the deceased Abbas A. Natawala? 2. Whether the petitioners prove that the Codicil dated 31 st March, 1999 to the last Will dated 15 th April, 1998 was valid and properly executed by the deceased Abbas A.Natalwala? 3. Whether the petitioners prove that they are entitled to the grant of probate in terms of Will dated 15 th April, 1998 and Codicil dated 31 st March, 1998, as prayed for by the petitioners? 4. Whether the Respondent/Caveator proves that he has some interest or claim, in respect of estate of the deceased Abbas A. Natalwala? 5. What decree and order? 3] The first plaintiff examined herself as a witness. The plaintiff also examined one Mr.Dinsoo Zaiwalla who was the attesting witness. 4] The learned counsel for the plaintiffs invited my attention to the averments made in the petition and the contentions raised in the affidavit in support of the caveat. Inviting my attention to the evidence of the witnesses, he submitted that there is no challenge to the execution of the Will and Codicil by the defendant. He submitted that the basic contention of the defendant is that the marriage of the deceased and his wife under the Special Marriages Act was not valid. He submitted that the objection of the deceased is not to the execution of the Will and Codicil, but, to the right of the deceased of making a Will. He submitted that kbp 3 56-04.sxw the issues raised cannot be gone into in these proceedings. Learned counsel for the defendant invited my attention to the letter dated 3 rd December, 2008 issued by the Marriage Registrar who has stated that earlier marriage in the `Nikah’ form of the deceased and his wife was not disclosed at the time of registration of the marriage under the Special Marriages Act. Therefore, it was submitted that the so called marriage under the Special Marriages Act does not satisfy the conditions mentioned in the Section 4 of the said Act. Learned counsel for the defendant submitted that the succession will be governed by Mohammedan Law and as per the Mohammedan Law, no legal heir can be deprived of his right of inheritance. It is, therefore, submitted that the suit be dismissed. 5] I have given careful consideration to the submissions made by the learned counsel for the parties. I have perused the pleadings and evidence. One Mr.Dinsoo Zaiwalla, Advocate and Solicitor was examined by the plaintiff who was the attesting witness. In the examination-in-chief, he stated that the Will was executed by the deceased in his presence and it was signed by himself and one Mr.D’Souza (since deceased) as attesting witnesses. He referred to the Codicil dated 31 st March, 1999 and stated that it was signed by the deceased and by the same attesting witnesses. Perusal of the cross-examination of the said witness shows that there is no challenge to the assertion made by the said witness regarding the execution and attestation of the Will and Codicil. In the cross-examination, there was no challenge to the fact that the Will and Codicil kbp 4 56-04.sxw were duly executed by the deceased and the same were duly attested. Thus, the execution of both the documents has been proved. 6] The defendant filed affidavit in lieu of the examination-in-chief of her Constituted Attorney and the father-in-law. He was essentially examined to prove that the marriage of deceased and his wife under the said Act was invalid for the reason of non-disclosure of earlier `Nikah’ at the time of solemnisation of the marriage before the Marriage Officer. 7] The submission of the learned counsel for the defendant is that the succession of the deceased will be governed by the Mohammedan law as his alleged marriage under the provisions of the Special marriages Act was not valid. The submission, in short, is that as the succession will be governed by the Mohammedan law, the deceased could not have made the Will and Codicil relating to his entire property. The dispute raised by the defendant is a dispute relating to the title which cannot be gone into in the proceedings for grant of probate. The effect of grant of probate is that there is a declaration that the Will and Codicil have been duly executed. Whether the Will could have been executed in respect of the entire property or whether the entire property of the deceased can be affected by the Will are the questions which cannot be decided in probate proceedings, and thus, the said questions will have to be kept open which can be agitated by the parties in the appropriate proceedings. 8] Subject to what is observed above, a case is made out for grant of kbp 5 56-04.sxw probate. Hence, I pass the following order:- (a) The suit is decreed. (b) Probate be granted, as prayed. (c) There will be no order as to the costs. ( A.S.OKA, J. )