Bombay High Court
Hameed Jaffar Ahmed Ibrahim Mandeel vs Farhat Mehdi Mandil And 10 Ors on 11 March, 2016
Author: G. S. Patel
Bench: G.S.Patel
MPTL1731-14-FINAL.DOC
Atul
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
MISCELLANEOUS PETITION (L) NO. 1731 OF 2014
HAMEED JAFFAR AHMED IBRABIM
MANDEEL,
having his address at 203, Jaydev Towers, Plot
No. 33, Sector 9, Charkop, Kandivili (West),
Mumbai - 400 067 ...Petitioner
Versus
1. FARHAT MEHDI MANDIL,
2. MEHJABEEN MEHDI MANDIL,
Meher-dad, Flat No. 84, 8th Floor, Cuffe
Parade, Colaba, Mumbai.
3. CHITRA MEHRA,
C-73, Textile Society, Bombay Dyeing
Compound, Prabhadevi, Mumbai - 400 025
4. MUMTA RAMODIYA,
1-1, Manjrekar Sadan, 258, Dr. A.B. Road,
Worli, Mumbai - 400 030
5. DR. MOHAMED ALI JAFFAR
AHMED IBRAHIM MANDEEL,
having his address at Building No. 268,
Road No. 505, Block No. 1205, Block
Name: Madinat Hamad, Govemorate-
Northem, Baharain.
6. REZA JAFFER IBRAHIM MANDEEL,
Villa 930, Road 2731, Block No. 1027,
Karzakhan, Beharain.
7. JAWAD JAFFAR AHMED IBRAHIM
MANDEEL,
having his address at Villa 22, Building No.
72, Road No. 350, Block No. 304, Block
Name: Manama Center, Govemorate:
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Capital, Baharain.
8. MS. AMNA JAFFAR AHMED
IBRAHIM MANDEEL,
having her address at Building No. 2523,
Road No. 2551, Block No. 525, Block
Name: Sar, Govemorate: Northem,
Bahrain.
9. MS. SIDDIQA JAFFAR AHMED
IBRAHIM MANDEEL (a.k.a. Mrs.
Siddiqa Clayton) having her address
Building No. 2523, Road No. 2551, Block
No. 525, Block Name: Sar Govemorate:
Northerm, Bahrain.
10. MR. MOHAMED ALI AHMED
MANSOOR,
Road No. 3608, Block No. 736, Block Name
'A' Ali, Govemorate: Central, Bahrain.
(Legal heir of Late Ms. Batool Jaffar Ahmed
Ibrahim Mandeel)
11. MR. MOHAMED HASSAN
MUHAMMAD ALI AHMAD
MANSOOR,
having his address at Building No. 2501,
Road No. 938, Block No. 1209, Block
Name: Madinat Hamad Govemorate:
Northem, Bahrain
(Legal heir of Late Ms. Batool Jaffar Ahmed
Ibrahim Mandeel)
12. MS. MAHA MOHAMED ALI AHMAD
MANSOOR,
having her address at Building No. 290,
Road No. 3608, Block No. 736, Block Name
'A' Ali, Govemorate: Central, Bahrain.
13. MR. SADIQ MOHAMMED ALI
AHMED MANSOOR,
having his address at Building No. 290,
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Road No. 3608, Block No. 736, Block Name
'A' Ali, Govemorate: Central, Bahrain.
(Legal heir of Late Ms. Batool Jaffar Ahmed
Ibrahim Mandeel)
14. MS. NASREEN MOHAMMED ALI
AHMAD MANSOOR,
having her address at 701 Kettner Blvd,
Unit 181 San Diego, CA 92101, USA,
(Legal heir of Late Ms. Bateel Jaffar Ahmed
Ibrahim Mandeel)
15. SHAHEEN JAFFAR AHMED
IBRAHIM MANDEEL,
8432 Pine Kay, West Palm Beach, FL
33411- 5558, U.S.A. ig ...Respondents
APPEARANCES
FOR THE PETITIONER Mr. Uday Bobade, with Ms. Aditi Bhatt,
i/b Mr. Y.R. Shah
FOR RESPONDENTS NOS. Ms. J.M. Sidhwa, i/b M/s. Bina Rao & Co.
1 TO 4
FOR RESPONDENTS NOS. Mr. Abbas Muktiyar, i/b Mr. Bharat
5&8 Punekar.
CORAM : G.S.Patel, J.
DATED : 11th March 2016
ORAL JUDGMENT:
1. Heard.
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2. This is a Petition for revocation of a probate granted to Respondent Nos. 3 and 4 in respect of a Will dated 19th September 2003 made by one Mr. Mendi Mandil ("Mehdi"), who died in Mumbai on 3rd October 2003. The 1st Respondent to this revocation Petition is Mehdi's widow, Farhat, and the 2nd Respondent is their daughter Mehjabeen. Respondent Nos. 3 and 4 were executors appointed under that Will. It is they who sought and obtained the probate.
3. Respondent Nos. 5 to 15 support the Petitioner. They all claim to be the heirs according to Shia Law of Inheritance. The Petitioner is Mehdi's brother.
4. Affidavits in Reply and Rejoinder have been filed. To one of these Affidavits, filed by Respondent No. 8, I will return shortly at the invitation of Ms. Sidhwa, learned Advocate for the Petitioner, since I believe she is right when she says that this Affidavit is thoroughly irresponsible.
5. However, the point that Mr. Bobade for the Petitioner canvasses is that under traditional Shia Laws of Inheritance, the Petitioner and Respondent Nos. 5 to 15 are all, what he calls "sharers" and have a pre-defined fractional share in Mehdi's estate. If he is right, and they do, they undoubtedly have a caveatable interest, and citations ought to have been served on them; and, consequently, since that was not done, the revocation Petition would have to succeed. If he is not right in his submission, however, the Petitioner and his supporting Respondents cannot be 4 of 18 ::: Uploaded on - 16/03/2016 ::: Downloaded on - 17/03/2016 00:00:20 ::: MPTL1731-14-FINAL.DOC said to have any caveatable interest at all, and the Revocation Petition must fail.
6. It is not in dispute that Mehdi's parents predeceased him, and that he was survived by the 1st Respondent, his widow Farhat, and the 2nd Respondent, his daughter, Mehjabeen. In Mr. Bobade's submission, in Shia Law the shares of siblings are predefined. He bases this submission on a table of sharers in Shia Law to be found in Mulla's Principles of Mahomedan Law (19th Edition, 1990).
That table relates to Sn.90 of the commentary.
7. Sn.90 of the commentary falls under Chapter VIII of this treatise. That Chapter is entitled Shia Law of Inheritance. Sections 87 to 92, 96 and 97 are important. In particular, Sections 87, 88 and 89 must also be read together. For convenience, Sections 87 to 92, 96 and 97 are reproduced below:
"87. Division of heirs.-- The Shias divide heirs into two groups, namely, (1) heirs by consanguinity, that is, bolld relations, and (2) heirs by marriage, that is, husband and wife.
88. Three classes of heirs by consanguinity.-- (1) Heirs by consanguinity are divided into three classes, and each class is subdivided into two sections. These classes are respectively composed as follows:-
I. (i) Parents;
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(ii) children and other lineal
descendants h.1.s.
II. (i) Grandparents h.h.s. (true
as well as false);
(ii) brothers and sisters and
their descendants h.1.s.
III. (i) Paternal, and (ii)
maternal, uncles and aunts, of the deceased, and of his parents and grandparents h.h.s., and their descendants h.1.s.
(2) Of these three classes of heirs, the first excludes the second from inheritance, and the second excludes the third. But the heirs of the two sections of each class succeed together, the nearer degree in each section excluding the more remote in that section [Baillie, II, 278,k 280, 285].
89. Husband and wife.-- The husband or wife is never excluded from succession, but inherits together with the nearest heirs heirs by consanguinity, the husband taking ¼ or ½, and the wife taking 1/8 or ¼ under the conditions mentioned in the Table of Sharers on page 84.
90. Table of Sharers--Shia Law.-- (1) For the purpose of determining the shares of heirs, the Shias divide heirs into two classes, namely, Sharers and Residuaries.
There is no separate class of heirs 6 of 18 ::: Uploaded on - 16/03/2016 ::: Downloaded on - 17/03/2016 00:00:20 ::: MPTL1731-14-FINAL.DOC corresponding to the "Distant Kindred" of Sunni law.
(2) The sharers are nine in number. The Table on page 84 gives a list of Sharers together with the shares assigned to them in Shia law.
(3) The descendants h.1.s of Sharers are also Sharers.
91. Residuaries.-- (1) All heirs other than Sharers are Residuaries.
(2) The descendants h.1.s. Of Residuaries are also Residuaries.
92. Distribution of property.-- (1) If the deceased left only one heir, the whole property would devolve upon that heir, except in the case of a wife. If the only heir be a wife, the older view is that she is entitled to no more than her Koranic share (one-fourth) and the residue (three- fourths) escheats to the Government.
(2) If the deceased left two or more heirs, the first step in the distribution of the estate is to assign his or her share to the husband or wife. The next step is to ascertain which of the surviving relations are entitled to succeed, and this is to be done with the help of the rules laid down in sec. 88.
The estate (minus the share of the husband or wife, if any) is then to be divided among those entitled to succeed according 7 of 18 ::: Uploaded on - 16/03/2016 ::: Downloaded on - 17/03/2016 00:00:20 ::: MPTL1731-14-FINAL.DOC to the rules of distribution applicable to the class to which they belong.
96. Rules of succession among heirs of the first class.-- The persons who are first entitled to succeed to the estate of a deceased Shia Mahomedan are the heirs of the first class along with the husband or wife, if any [s.92(2)]. The first class of heirs comprises parents, children, grandchildren, and remoter lineal descendants of the deceased. The parents inherit together with children, and, failing children, with grandchildren, and failing grandchildren, with remoter lineal descendants of the deceased, the nearer excluding the more remote [s.88].
Succession in this class is governed by the following rules:-
(1) Father.- The father takes 1/6 as a Shjarer if there is a lineal descendant;
as a Residuary, if there be no lineal descendant [see Tab. Of Sc., No.3].
(2) Mother.- The mother is always a Sharer, and her share is 1/6 or 1/3 [see Tab. Of Sh., No.4].
(3) Son.- The son always takes as a
Residuary.
(4) Daughter.- The daughter inherits as a Sharer, unless there is a son in which case she takes as a Residuary with him according to the rule of the double share to the male [see Tab. Of Sh., No. 5].
8 of 18 ::: Uploaded on - 16/03/2016 ::: Downloaded on - 17/03/2016 00:00:20 ::: MPTL1731-14-FINAL.DOC (5) Grandchildren.- On failure of children, the grandchildren stand in the place of their respective parents, and they inherit according to the principle of representation described in secs. 93, 94 and 95, that is to say -
(i) the children of each son take the portion which their father, if living would have taken as a Residuary and divide it among them according to the rule of the double share to the male;
(ii) the children of each daughter take the portion which their mother, if living, would have taken either as a Sharer or as a Residuary and divide it among them also according to the rule of the double share to the male (6) Remoter lineal descendants.-
Succession among remoter lineal descendants is governed by the same principle of representation, that is to say, great-grandchildren take the portion which their respective parents, if living, would have taken, and divide it among them according to the rule of the double share to the male, and great-great-grand-
children take the portion which their respective parents, if living, would have taken, and divide it among them also according to the same rule.
97. Rules of succession among heirs of the second class.- If there are no heirs 9 of 18 ::: Uploaded on - 16/03/2016 ::: Downloaded on - 17/03/2016 00:00:20 ::: MPTL1731-14-FINAL.DOC of the first class, the estate (minus the share of the husband or wife, if any) devolves upon the heirs of the second class. The second class of heirs comprises grandparents h.h.s. and brothers and sisters and their descendants h.1.s.
[s.88]. The rules of succession among the heirs of this class are different according as the surviving relations are-
(1) grandparents h.h.s., without brothers or sisters or their descendants;
(2) brothers and sisters of their descendants, without grandparents or remoter ancestors;
(3) grandparents h.h.s., with
brothers and sisters or their
descendants."
8. Ms. Sidhwa points out that the principal ground, if not the onlyl ground, for revocation is non-service of citations on the Petitioner and his supporting Respondents. The basis of this claim is, as I have noted Mr. Bobade's submission, that the siblings and their branches are "sharers". This appears not to be correct, and I think Mr. Sidhwa is justified in her submission when she points out that under Sns.87 and 88 in Mulla's commentary, it is clear that heirs in Shia Law are in two groups: (a) heirs by consanguinity, i.e., blood relations and (b) heirs by marriage. The first of these, heirs by consanguinity, are further divided into three classes with each class being divided into two sub-classes. Parents fall in sub-class (i) of Class (I). Children and lineal descendants are in sub-class (ii) of 10 of 18 ::: Uploaded on - 16/03/2016 ::: Downloaded on - 17/03/2016 00:00:20 ::: MPTL1731-14-FINAL.DOC Class (I). Siblings and their descendants are in sub-class (ii) of Class (II). What is important is sub-section (2) of Section 88. For this merely provides that of these classes of heirs, the first excludes the second from inheritance and the second excludes the third. Within each class, the heirs of the two sub-classes or sections succeed together, the nearer degree in each excluding the more remote. Thus, as between the main classes, each superior class eliminates and excludes the following class. Thus, Class I comprising parents, children and other lineal descendants excludes from inheritance those in Class II, i.e., grandparents, brothers and sisters and their descendants. If there was any doubt about this, it is put to rest by Sn.97, which says that "if there are no heris of the first class, the estate (minus the share of the husband or wife, if any), devolves upon the heirs of the second class.
9. Equally important is Section 89 which specifies that a spouse is never excluded from succession but that he or she inherits together with the nearest heirs by consanguinity, i.e., those set out in Section 88. The table referred to in Section 90, and which is also reproduced below, merely sets out the respective shares, in a situation where none of these classes could be said to have been eliminated by a receiving class. Thus, where there is a lineal descendant, the wife would get 1/8th share.
Sharers Normal Conditions under Share as varied
share which the share is by special
inherited circumstances
of of
one two
or
more
coll
ecti
vely
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1. Husband ¼ .. When there is a ½ when no such
lineal descendant descendant.
2. Wife 1/8 1/8 When there is a ¼ when no such
lineal descendant descendant.
3. Father 1/6 .. When there is a [If there be no
(b) lineal descendant lineal
descendant, the
father inherits
as a residuary.]
4. Mother 1/6 (a) When there is 1/3 in other
a lineal cases.
descendant; or
(b) When there are
two or more
ig full
consanguine
brothers,
or
or
one such
brother and
two such
sisters, or
four such
sisters, with
the father.
5. Daughte ½ 2/3 When no son. [With the son
r she takes as a
residuary.]
6. Uterine 1/6 1/3 When no parent, or
brother lineal descendant.
[see s.88]
7. Or
sister
8. Full ½ 2/3 When no parent, or [The full sister
sister lineal descendant, takes as a
or full brother, residuary, with
or father's father the full brother
[see ss.88, 101] and also with
the father's
father, see. s.
101]
9. Consang ½ 2/3 When no parent, or [The consanguine
uine lineal descendant, sister takes as
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sister or full brother or a residuary with
sister, or the consanguine
consanguine brother and also
brother or with the
father's father. father's father:
[see ss. 88, 101] see s. 101].
10. This would be the distribution and devolution on intestacy if all these persons had a share. It only sets out the shares, if any. Neither the table nor its corresponding Section 90 can be read to mean that because of this table any particular heir acquires a share. All that Section 90 and this Table do is to provide a quick reference to calculate the amount or extent of that share, if there is in fact a share according to the other Sections. To read it in any other way would mean that the all-important Sns 87, 88 and 97 are rendered wholly otiose and meaningless. That cannot be. The Table is only like a ready reckoner.
11. Ms. Sidhwa is also correct in drawing attention to the illustration (d) below Section 88, which reads thus:
"(d) A Shia Mahomedan dies leaving (1) a father, (2) a mother, (3) a daughter, (4) a son's son, (5) a brother, and (6) a paternal uncle. Which of these relations are entitled to succeed?
Here the first four relations belong to the first class of heirs, the fifth belongs to the second class, and the sixth belongs to the third class. The fifth and sixth are therefore excluded from inheritance. The father and mother belong 13 of 18 ::: Uploaded on - 16/03/2016 ::: Downloaded on - 17/03/2016 00:00:20 ::: MPTL1731-14-FINAL.DOC to the first section of Class 1, and they are both equal in degree. The daughter and son's son belong to the second section, and of these two, the daughter, being nearer in degree, excludes the son's son. The only persons therefore entitled to inherit are the father, the mother and the daughter."
(Emphasis added) Ms. Sidhwa is correct in saying that this illustration is itself a
12. complete answer to the Petition. There is no doubt that the Petitioner and the supporting Respondents fall, and only fall, in Class 2. They are excluded from inheritance since the deceased was survived by (1) his widow and (2) his daughter, Respondents Nos. 1 and 2. Since the spouse is never excluded, the widow, too, would succeed to inheritance.
From any perspective, therefore, the Petitioner and
13. Respondents Nos. 5 to 15 cannot be said to be heirs or sharers and they have no caveatable interest.
14. Mr. Bobade then invites my attention to Sections 117 and 118 of the same commentary. His submission is that no bequest to any heir is valid unless the other heirs consent to that bequest. His submission is that his clients' consent was, therefore, necessary for the bequest to take effect. But this argument proceeds on one fatally flawed assumption, viz., that the Petitioner and his siblings are in fact heirs, i.e., that they are entitled to succession and are not excluded from succession by virtue of the widow and the daughter 14 of 18 ::: Uploaded on - 16/03/2016 ::: Downloaded on - 17/03/2016 00:00:20 ::: MPTL1731-14-FINAL.DOC surviving the deceased. But once they are excluded, which they are as we have seen, they are not 'heirs', and no question of their consent arises.
15. Relying on Section 118 of Mulla's commentary, Mr. Bobade then submits that a Mahomedan cannot bequeath more than 1/3rd of the surplus of his estate after payment of funeral expenses and debts and that all benefits in excess of this cannot take effect unless their heirs consent. Again this is of no assistance to Mr. Bobade. All that this means is that while the Testator may have done as he pleased with one-third of his surplus estate, the balance two-thirds would of necessity devolve upon the heirs by consanguinity governed by Section 88 of this very commentary. Again, this submission proceeds on the assumption that it is established that the Petitioner and his supporting Respondents are heirs entitled to succeed. Once it is seen that they are not, no question of devolution on them or of their consent arises.
16. Indeed, the argument on Sections 117 and 118 appears to me to be somewhat circular. To invoke either of these sections, Mr. Bobade would first have to establish that his clients and the Respondent who support him are in fact heirs. That is a threshold requirement that he must establish. If he cannot, no other argument is of any avail to him.
17. Mr. Sidhwa also points out that the Petition itself is, if not barred by limitation, at least grossly delayed and for there is no explanation whatever for this delay. The probate was obtained on 30th June 2004. The Petition was not filed till 14th November 15 of 18 ::: Uploaded on - 16/03/2016 ::: Downloaded on - 17/03/2016 00:00:20 ::: MPTL1731-14-FINAL.DOC 2014, a good 10 years on. In the meantime, some of the Respondents have, on what I can only describe as a thoroughly shameful series of allegations, sought to institute a partition Suit in repsect of certain immovable property comprised in that estate. These allegations are contained in the Affidavit of Respondent No.
8. This is a person who is said to have been 58 years old in 2015.
She says that the deceased was her elder brother. She then proceeds to make allegations against the 2nd Respondent and says that the 2nd Respondent was not the deceased's daughter; that she was an illegitimate child of the 1st Respondent and her paramour; and that the 2nd Respondent is therefore disentitled to succeed to any part of this estate. Some of the more remarkable portions of this Affidavit are in paragraphs 2 and 3:
"2. I say that my eldest brother Mehdi Jaafar Ahmed Mandeel has got married on 19th December 1952 and for 7 years his wife did not get pregnant. I say that thereafter Dr. Mohammed Ali Mandeel stumbled upon a report in the Glove Compartment of Mehdi's car which stated that he could not bear any children as he was void of Sperms known as "AZOOSPERMIA", which Dr. Mandeel informed my mother in my presence.
3. I say that on April 1959, I was visiting my brother's wife residing at Haji Mohammed Court, 2nd Floor, Flat in Clare Road, at Byculla, (while my brother was away in Bahrain) and I saw her making signs with Mr. Nakshab Jarchvi a very famous song writer living on the 1st Floor of Habib Court, Clare Road, at Byculla.
16 of 18 ::: Uploaded on - 16/03/2016 ::: Downloaded on - 17/03/2016 00:00:20 ::: MPTL1731-14-FINAL.DOC After a little while Mr. Nakshab Jarchvi rang the door bell and I have answered the door and he was taken by surprise and he turned immediately and ran. Mr. Majeed another Art Director and his family were living in Habib Court who informed my mother and my elder sister Batool Jaafar Mandeel that Farhat Mehdi Mandeel was visiting Mr. Nakshab Jarchvi in his flat on a daily basis. Mr. Hameed Mandeel i.e. the Petitioner, who at a very young age was sometimes accompanying her to Mr. Nakshab's flat."
18. If what Respondent No. 8 says about herself is true, it means she was born in 1957. She claims that in 1959, when, on her showing, she was two years old, she noticed, recognized and understood all that is stated in paragraphs 2 and 3 of this Affidavit, set out above. I very seriously doubt that at that time she was even capable of even the physical acts to which she lays claim in paragraph 3, leave alone recognizing anybody or his profession or motives. In any case, her age is wholly irrelevant, for everything that follows is wholly immaterial and cannot possibly be to her knowledge, including anything about the deceased's alleged medical condition. Apart from being excluded in any formal proceedings as being hearsay, it is in itself dubious, for, even ignoring the question of her age at that time, the fact is that she did not make any such grievance all this time; and, more importantly, this is not the basis of the Revocation Petition at all. Indeed, from paragraph 1 of the Petition onwards, and in paragraphs 1, 2, 4, 5, and 11, the Petitioner accepts in terms that the 2nd Respondent is the daughter of the deceased Mehdi and is one of those entitled to 17 of 18 ::: Uploaded on - 16/03/2016 ::: Downloaded on - 17/03/2016 00:00:20 ::: MPTL1731-14-FINAL.DOC succeed to his estate. The only ground taken is that under the Shia Hanafi law, the Petitioner and the supporting Respondents are also heirs and therefore had a caveatable interest. There are only four grounds for revocation, sub-paragraphs (a) to (d) of paragraph 10. The 2nd Respondent's alleged illegitimacy is not one of those grounds. The 8th Respondent has not herself filed any Petition. She has not made any such allegation or obtained any such adjudication. The allegations she now makes are thoroughly scurrilous and vexatious. They are contrary to the stand of the Petitioner himself.
The Petitioner can derive no support from the Affidavit of the 8th Respondent.
19. I see no reason whatsoever to give any credence at all to such an Affidavit. It is one thing to say, as Mr. Bobade does, and I will not fault him for this, that his client has certain entitlements or rights in law. That clearly is a matter for civil discourse. But allegations of this stripe, wholly unsubstantiated, inordinately delayed and clearly motivated should never find the slightest favour in any court of law. They must be deprecated and condemned in the strongest possible terms. They are.
20. There is no substance in the Petition. It is dismissed. There will be no order as to costs. Mr. Bobade is correct in pointing out that I granted an ad-interim injunction on 22nd December 2013.
Since this has held the field till today, it is continued for a period of four weeks from today.
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