NURUN NAHAR Vs. ABDUL RASOOL

JUDGEMENT

(1.) This appeal is at the instance of an applicant for grant of probate of a Will executed by a Mohammedan testatrix and is directed against the order dated April 21, 2011 passed by a learned Single Judge of this Court and thereby dismissing the application for grant of probate, not on merit, but on the ground that the Executor had alternative remedy of institution of a suit for getting the same relief, as the mandatory requirement of obtaining a probate was not necessary in case of a Will left by a Mohammedan testatrix as provided in Section 231(2) of the Indian Succession Act, 1925.

(2.) Being dissatisfied, the Executor has come up with the present appeal. Therefore, the only question that arises for determination in this appeal is whether notwithstanding the fact that the Indian Succession Act has excluded its operation in case of the grant of probate executed by a Mohammedan testatrix, the learned Single Judge refused to exercise jurisdiction vested in His Lordship by law by not entertaining the prayer for grant of probate of such a Will. After hearing the learned Counsel for the parties and after taking into consideration the fact that Indian Succession Act has no application in respect of grant of probate in respect of a Will executed by a Mohammedan testator as provided in the said Act, we find that the law is equally settled that in respect of a Will executed by a Mohammedan lady, this High Court, by virtue of the power conferred under the Letters Patent, is entitled to invoke its testamentary jurisdiction which was in existence even prior to coming into operation of Indian Succession Act, 1925. By way of the amendment of the City Civil Court Act, 1953, only the power of grant of probate under Indian Succession has been taken away from this Court but the power to grant probate in respect of a Will executed by a Mohammedan lady still exists in this Court by virtue of the power conferred by the Letters Patent.

(3.) This High Court in the past has settled the position of law that although the grant of probate is optional in case a Will executed by a Mohammedan testator and that too, to a limit extent of the estate left by such testator, there is no bar in grant of probate of such a Will, if the same is applied for.