Delhi High Court
Iqbal Amiri vs The State & Ors on 5 April, 2016
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ TEST. CAS. NO.17/2011
% 5th April, 2016
IQBAL AMIRI ..... Petitioner
Through: Mr. Nishant Menon, Ms. Kavita Sarin and
Mr. Shafiq Ahmed, Advocates.
versus
THE STATE & ORS ..... Respondents
Through: Mr. Ashish, Advocate for R-2, 3, 4 & 5.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
1. This petition for probate is filed by the petitioner/son/Sh. Iqbal Amiri seeking probate of the Will dated 12.1.2007 of late father Sh. Mohammad Hussain Amiri who was a Sunni Muslim. Sh. Mohammad Hussain Amiri expired on 9.7.2007 leaving behind only one immovable property being Flat No.10-C DDA Flats, Sarai Juliana, Second Floor, New Delhi.
2. On the death of Sh. Mohammad Hussain Amiri on 9.7.2007, he left behind five legal heirs with petitioner as a son, the widow Smt. Razia Amiri and his three daughters namely Smt. Shahnaz Amiri, Smt. Mumtaz Amiri and Smt. Rukhsana Amiri. All the three daughters and the widow have filed their no objection affidavits in the Court and are represented through counsel who affirms Test. Cas. No.17/2011 Page 1 of 3 the no objections of the legal heirs to the Will of late Sh. Mohammad Hussain Amiri.
3. This case is coming up for arguments after petitioner has led evidence of the attesting witness namely Sh. Umesh Jagtiani. Sh. Umesh Jagtiani has deposed that he signed as an attesting witness to the Will dated 12.1.2007 of Sh. Mohammad Hussain Amiri and he has seen the executant sign and execute the Will dated 12.1.2007 in his presence. The attesting witness has identified the signatures of Sh. Mohammad Hussain Amiri on the subject Will and has deposed that the executant was in a sound disposing mind when the Will was executed and attested. Though the witness Sh. Umesh Jagtiani has not personally come in the witness box, however, there is no need to prove his affidavit which is by way of examination-in-chief and therefore I accept the affidavit by way of evidence of Sh. Umesh Jagtiani, more so as there is no opposition to the same by the other legal heirs of Sh. Mohammad Hussain Amiri. The original Will has been proved and exhibited as Ex.PW1/2.
4. During the course of arguments, I put it to the counsel for the plaintiff that Part VI of the Indian Succession Act, 1925 dealing with the testamentary succession does not apply to Mahomedans and this is clear from Sections 57 and 58 of the Act. Counsel for the petitioner also concedes that the issue of how a Will is executed and proved of a Mahomedan is cited in MULLA Principles of Mahomedan Law, Nineteenth Edition by Lexis Nexis, and as per which there is no Test. Cas. No.17/2011 Page 2 of 3 format of a Will and in fact a Will of a Mahomedan can be an oral Will ie a Will even does not have to be attested as it need not be in writing.
5. In view of the above, it is clear that a probate case with respect to the Will of a deceased Mahomedan is not maintainable because the provisions of the Indian Succession Act pertaining to testamentary succession will not apply to Mahomedans. At this stage, at the request made on behalf of the petitioner as also the other legal heirs of Sh. Mohammad Hussain Amiri, this petition is converted into a suit for declaration inasmuch as heading of the case should not defeat the substance of the case. The present petition therefore be re-numbered as a suit and petitioner will file the court fees of Rs.20 on the suit for declaration as the suit is a suit for declaration seeking validity of the Will dated 12.1.2007 executed by late Sh. Mohammad Hussain Amiri. Court fees be paid within two weeks from today.
6. In view of the above fact that the Will is proved and there is no opposition to the same by the respondents no. 2 to 5 who are the legal heirs of Sh. Mohammad Hussain Amiri, the present suit for declaration is decreed declaring that late Sh. Mohammad Hussain Amiri died leaving behind his valid Will dated 12.1.2007. Decree sheet be prepared accordingly. Parties are left to bear their own costs.
APRIL 05, 2016 VALMIKI J. MEHTA, J.
ib
Test. Cas. No.17/2011 Page 3 of 3