SIR MAHOMED YUSUF Vs. HARGOVANDAS JIVAN

JUDGEMENT

(1.) This appeal raises a short but important point on a Vendor and Purchaser Summons, viz., whether the executors of a Mahomedan will can validly sell and convey their testator's immoveable property without first taking out probate, or else obtaining the consent of all the heirs.

(2.) The testator was a Bombay, as opposed to a Kathiawar, Halai Memon. Consequently the succession to his estate is governed by Mahomedan law: Mahomed V/s. Khatubai (1918) 21 Bom. L.R. 85, 87: and that law is Sunni Mahomedan law. He made a will on the 5 November 1920 some twenty-four hours before his death. That will is exhibited to the joint affidavit of the three attesting witnesses sworn on the 30 September 1921 which we have admitted in evidence in this Court.

(3.) The will after appointing the appellants to be his executors and trustees and guardians of his two infant daughters directed his trustees to pay his debts and funeral and testamentary expenses and a certain sum for funeral and religious ceremonies. The testator further directed his trustees to collect and get in all his estate, and thereout pay one-third to charity as therein mentioned, and divide the remaining two-thirds amongst his heirs according to Mahomedan law. The heirs of the testator are his above two daughters and his father.