BILQUIS ZAKIUDDIN BANDOOKWALA Vs. SHEHNAZ SHABBIR BANDUKWALA

JUDGEMENT

(1.) The plaintiffs have applied for review of the order dated 14 th October, 2010 on the ground of an error apparent on the face of the record and for the reasons considered sufficient by the plaintiffs.

(2.) The order dated 14 th October, 2010 came to be passed in the above Notice of Motion which was taken out by the plaintiffs2 for administration of the estate of the deceased son of the plaintiff No.1 and brother of the other plaintiffs. The Suit has been filed for administration of his estate on the ground of intestacy.

(3.) The defendant produced Will of the deceased who is her deceased husband. The marriage of the defendant and the deceased was registered under the Special Marriage Act. Consequent upon such registration, they would be governed by the Indian Succession Act for the purpose of succession, both intestate or testamentary. Since the deceased would be governed by the Indian Succession Act, he would have no restrictions on him to bequeath only 1/3 of his property by a Will as per the Muslim Personal Law. He was also not required to obtain consent of the heirs to bequeath in excess of 1/3rd Property. He would be entitled to bequeath the entire of his properties. It would, of course, be required to be proved by the heirs propounding the Will. The deceased, being a Muslim would not require to have the Will probated under the Indian Succession Act which applied to his succession. Based on such facts in the suit of the plaintiff, I came to the prima facie conclusion that the marriage being registered and the Will being produced and the probate of the Will not being required, the defendant would have to prove the Will in the suit itself. The onus would be on the defendant to prove the Will.