Bombay High Court on Receiving Uncontested Petition pending for 31 years Says 'Tragic and terrible commentary on justice delivery system'

Bombay High Court on Receiving Uncontested Petition pending for 31 years Says 'Tragic and terrible commentary on justice delivery system'

The Bombay High Court (HC) heard the matter of Mahomed Chinoy (Petitioner) v. Rasubai Chinoy (Respondent- Deceased) on 10 March 2021 wherein an objection was raised by the registry on a question pertaining to the requirement of attestation of Will under Mahomedan Personal Law.

The single-judge of the HC Justice Gautam Patel held, "The question of law is thus decided. The objection of the Registry is answered. The Will, being of a Cutchi Memon, governed by Mahomedan law, does not require attestation."

He was surprised at the instance of inexplicable listing of cases, a 31 years-old uncontested petition was filed in 1990 came up for hearing before the HC.

The Judge record in his order that it was 'truly inexplicable', he added, "The first oddity about the matter, and it is truly inexplicable, apart from being a tragic and terrible commentary on our justice delivery system, is that, though uncontested, the matter has been pending in this Court for the last 31 years."

He further said that "There is indeed a question of law involved. But the answer to it is neither complex nor new. Indeed, that answer is even older than the Petition: the solution is from 1905. It is an answer that the Petition could have received very much earlier. Their wait ends today."

In the instant matter, the issue was- Whether a will required attestation and whether the will was required in a written format under the Mahomedan law. The Will was made in 1980 and Rasubai Chinoy died in 1989 without appointing executors for her Will.

In the said Will it was mentioned that the inheritance along with income received by the deceased from her paternal aunt was to be returned to her aunts' charitable trust after her death. None of the petitioners claimed any part of it.

In 1990, the petition was filed and the matter came up for hearing before the Court wherein an objection was raised by the registry regarding a question of law that Will did not have attestation.

Justice Patel considered the precedent of 1905 of the HC from the year and disposed of the petition. He framed the following issues for further consideration of the Court-

- Whether a portion of the Act dealing with testamentary succession under the Indian Succession Act 1925 applies to a Sunni Hanaf Mahomedan?

- Whether under the law governing Sunni Hanaf Mahomedans, there is any requirement of the attestation of a Will?

Three provisions of the Indian Succession Act were relied upon by Justice Patel and he concluded that Section 63 of the Act deals with attestation of a Will by at least two witnesses however the said provision is not applicable to Wills made under the Mahomedan law.

Justice Patel further relied on the judgment in the matter of In re Aba Satar Haji Aboobuker of 1905 wherein the Court held that since the Succession Act did not apply to the Mahomedan, and the Probate and Administration Act did not set a requirement for attestation in Mahomedan wills, there was nothing which makes it compulsory for Mahomedans to attest their wills.

Justice Patel granted probate considering the facts of the instant matter similar to the aforesaid case. He further remarked, "At this stage perhaps I should enter only one solitary comment: nothing changes even after 150 years."