MOHD. ASIF Vs. THE STATE AND ANR.

JUDGEMENT

(1.) THIS probate appeal under Section 384 of the Indian Succession Act, 1925 is filed against a judgment and order of the Learned Additional District Judge, Sh. Rajender Kumar Shastri dated 03.10.2009, made in PC No. 99/2007. The appellant had approached the trial court for probate in respect of the will of his mother late Smt. Naseem Begum, who died on 02.02.2006; she had propounded a will on 04.03.2005 by which she bequeathed her entire estate to him. It was contended that the will was valid and binding as it has been attested by two independent witnesses and the testatrix was sound disposing state of mind.

(2.) THE respondents, who are other heirs of the testatrix, objected to the proceedings firstly denying the will and secondly submitting that she was suffering from acute thyroid problem from five years prior to her death. It was also argued that the testatrix, could not, having due regard to the personal law applicable to the parties i.e. Sunni Law, bequeath her entire estate to the Petitioner/Appellant (her son). The respondents had relied upon various authorities including Noorunissa @ Pichamma v. Rahaman Bi : (2001) 3 MLJ 141; B.R. Verma's Commentaries on Mohammdan Law, 8th Edition 2002; Abdul Rehman v. Uthumansa : AIR 1925 Mad. 997 and also other rulings.

(3.) THE above discussion would indicate that those governed by Mohammedan Law cannot bequeath more than 1/3rd of their entire estate; even in respect of such 1/3rd share that an individual can bequeath, there has to be consent by the other heirs who are excluded from the estate. In this case concededly, the Appellant was able to establish that the consent of many of the testatrix's heirs had been given, but the record also showed that the consent of the fourth respondent was not forthcoming.