DEVIKA DAMJI SHAH Vs. RASHMI MUKESH SHAH

JUDGEMENT

(1.) This Notice of Motion is taken out by defendant No.1 for dismissal of the suit and release of the assets of the deceased whose estate is being administered. The deceased was one Dr. Mukesh Ramji Shah. The plaintiff is the mother of the deceased (mother). Defendant No.1 is the wife of the deceased (wife). Defendant No.2 is the son of the deceased (son). All these parties are the heirs and legal representatives of the deceased under Section 8 of the Indian Succession Act. The mother has sued for claiming her 1/3 rd share in the estate of the deceased and for that purpose prayed for declaration that the will of the deceased dated 19 th February, 202 and two joint declarations dated 16 th August, 2001 are illegal and void and accordingly for administration of the estate of the deceased as on intestacy, making accounts, and giving her share.

(2.) The will of the deceased was sought to be probated by his wife as the guardian of his son who was the sole legatee under the will. The will was executed in Mumbai. However the deceased as well as his wife and son were resident in Dubai, UAE. The will was sought to be probated there. After initial rejections on the ground that such a will could not have made under a Sharia law, the Court of Cassation in Dubai, which is the Apex Court in that country, has passed an order which has granted the administration of the movable and immovable assets of the deceased to his minor son. The wife claims that that is the probate of the will granted by the Court of Cassation in Dubai.

(3.) The wife has thereafter filed a petition under Section 228 of the Indian Succession Act for an ancillary probate in respect of the estate of the deceased in Mumbai, India. Since the will of the deceased was proved and deposited in the Court in Dubai and an authenticated copy of the will was produced for the grant of Letters of Administration with the authenticated copy of the will proved abroad, this is separately obtained and may be separately challenged by the mother.