New Delhi: Do Muslims need to get their wills attested to establish the document’s execution?
As the Supreme Court examines this question of law in a 13-year-old civil appeal pending before it, the apex court has, in a unique move, opened the debate to the Bar and asked for its members’ assistance.
In an order issued last week, a bench of justices Sanjay Karol and Augustine George Masih said, “Considering the nature and importance of the matter, it shall be open for the members of the Bar to assist the court by filing their written synopsis indicating the position of law; the judicial pronouncements with relevant paragraphs.”
Senior Advocate Rakesh Khanna, who represents the petitioner in the case, confirmed to ThePrint about the court’s extraordinary approach in the case. Khanna said the bench has taken the step even though there is a statutory bar against attestation of Wills prepared by Muslims.
The community’s personal law allows for an oral will and recognises a written will that does not need signature of the one bequeathing the property. In case of a signature, the will need not be attested and registered.
Notwithstanding the statute, the court converted a private dispute between two litigants into an open debate. “The judges are keen to understand the source of the customary law, how it evolved and became a practice,” Khanna explained.
Besides, two more pertinent questions related to Muslim practice would be looked into. First, whether a child can inherit from step-parents, and second if a person can bequeath only one-third of his property through a will, with the rest getting divided equally to the legal heirs.
These crucial questions concerning succession and inheritance in Muslims have come up before the Supreme Court in a dispute between a Muslim woman and her step-grandson.
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The case
The appeal before the top court is filed by Old Delhi-based Gohar Sultan who has challenged the 2011 judgement of the Delhi High Court that rejected her claim of inheriting the property of her adoptive mother Nawab Begum through a will executed by the latter.
In doing so, the Delhi High Court had set aside a July 2010 decision of the trial court, which held otherwise.
The trial court judgement had come on Sultan’s step-grandson, Shekh Anis Ahmed’s petition for probate petition—a plea filed in court to validate a will after a person’s death—in which he claimed Nawab Begum had bequeathed her property to him through a will settled in 1984 in his favor.
In response to this probate petition, which was filed soon after Nawab Begum passed away in June 1992, Sultan had produced the will that she had. This will was attested by one witness, who during his examination before the trial court affirmed it, but at the same time acknowledged that the will was not executed in his presence.
The trial court accepted Sultan’s stand and held that the will in her favour superseded the 1984 Will presented by Ahmed.
On Ahmed’s appeal, the HC reversed the trial court’s findings. In its order, the court observed that Sultan’s will should have been attested by two witnesses, as is required under section 63 of the Indian Succession Act.
Further, the HC noted, Sultan did not give a declaration under the The Muslim Personal Law (Shariat) Application Act, 1937 to the effect that the personal law will apply to her. This implied that the provisions of the Indian Succession Act would be applicable to her matter.
Sultan’s appeal before the Supreme Court assails the HC order primarily on the ground that the Indian Succession Act contains an exclusionary provision covering the Muslims. Meaning thereby, that a Muslim will need not be attested nor registered as per this law.
Khanna explained that under the personal law there is a requirement to establish the intention to create a will. “Though the Evidence Act warrants that one witness should be examined to prove a will, it in the same breadth adds that such an examination is needed in a case where attestation of the will is mandatory as per the law. This is not applicable in the case of Muslims,” he said.
(Edited by Ajeet Tiwari)
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