This article is written by Dnyaneshwari Patil, from RTMNU Babasaheb Ambedkar College of Law, Nagpur. In this article, she analyses the case of Mohamed Obedulla Chinoy v. Rasubai Chinoy. It took over three decades for the judgement to be pronounced in this matter.
The primary aim of the judicial system is to make the adjudication on the matter simpler, faster, uncomplicated, and inexpensive for the common person. It has been rightly said that justice delayed is justice denied. In a recent event, an utmost disappointment is expressed regarding a judgement passed by the Bombay High Court in the case titled Mohamed Obedulla Chinoy & Ors. vs Rasubai Suleman Chinoy (2021), which was pending in the High Court for over thirty-one years. As expressed by the Bombay High Court, the case indeed involved a question of law; however, the answer to it was neither complex nor new. Ironically so, the answer to the question was older than the petition and has been in existence since 1905.
Facts of the case
In this case, one Rasubai Suleman Chinoy formed a Will in Urdu. She belonged to a religious denomination that is Sunni Hanafi Mahomedan. The Will was made in Mumbai on 20th December 1980. Rasubai died on 10th October 1989, and there were no executors and witnesses under the will. Here, Rasubai Chinoy received all the inheritance from her aunt and thus desired through her will to give back to the charitable trust named after her aunt. Based on an objection by the Registry, the matter came forward before the Bombay High Court. The Registry expressed their concerns as the Will was without any attestation by two witnesses and was not in conformity with Section 63 of the Indian Succession Act, 1925. Four of her five sons approach the Bombay High Court to ensure that the Will of their mother gets fulfilled, and additionally, they have no claim in the said Will.
Issues involved in the case
- Whether Part VI of the Indian Succession Act 1925, in fact, applies to a person of this religious denomination, i.e. a Sunni Hanaf Mahomedan?
- Whether under the law governing Sunni Hanafi Mahomedans, is there any requirement of the attestation of a Will at all?
Summary of the arguments
It was observed that Section 63 of the Indian Succession Act, 1925, requires attestation of the witnesses for the unprivileged Wills. However, this Section 63, falling under Part VI of the Indian Succession Act 1925, covers those people falling under Section 57 of the said Act, 1925. According to Section 57, it makes it abundantly clear that the provisions of this part under Schedule III apply to Hindus, Buddhists, Jaina, and Sikhs. Thus, Section 63 applies to Hindus, Buddhists, Jaina and Sikhs and would be inapplicable to the Will made by Mohammedans. Further, according to Section 213 of the Indian Succession Act 1925, sub-clause (i) mentions that the right of an executor and legatee could be established when the court of competent jurisdiction grants probate or a letter of administration with will annexed. However, sub-clause (ii) clearly mentions that the above requirement is not applicable in the case of wills made by Mohammedans.
If we briefly summarise it, we can observe that Section 63 of the Indian Succession Act requires attestation of the will by at least two witnesses. However, the people belonging to the religious denomination of the Mohammedan sect don’t come under the ambit of the same Section. Therefore, Section 63 would not be applicable to the Will made by Mohammedans. Further, Section 213 of Indian Succession Act, 1925 mentions that the will made by Mohammedans doesn’t mandatorily require probate.
The question arose regarding the personal laws governing persons belonging to the religious denomination of Sunni Hanafi Mahomedan. In our case, the testator, including the parties, involved belongs to the Cutchi Memon and therefore are governed by the Cutchi Memons Act, 1938. According to the said Act of 1938, Cutchi Memons are governed by Mohamedan’s laws when the issue pertains to succession. Mulla’s commentary on the principles of Mahomedan law, 20th Edition, divides Mahomedans into two principal sects, the Sunnis and Shias. The Cutchi Memon belongs to the Sunni sect and similarly comes under the Hanafi School.
Further, the “Vasiyat,” i.e. the will, can be made verbally or in writing. It does not demand any particular form of will. Therefore, there is no such compulsion that the will should be made only in writing. The vital ingredient to look at is the intention of the testator.
Justice Gautam Patel relied on the 1905 judgement of Justice Badruddin Tyebji in the case of Aba Satar Haji Aboobuker. In this case, a similar question arose i.e., whether under Mahomedan law attestation was necessary for a Will. In this, the testator also belongs to a Cutchi Memon religious denomination and the problem regarding the attestation of the Will came forward before the Registry. The Registry had the same doubts regarding the unattested will and whether the same can be granted probate. At that time, the religious denomination of Cutchi Memon was governed by Hindu personal law, which, after the passing of the Cutchi Memons Act 1938, is now governed by the Mahomedan personal law. The single-judge Bench, in the above-referred case, Mr. Justice Tyabji held that, “To my mind, there is nothing in the Mahomedan law which requires attestation of Wills. However, I have looked into the law books to satisfy myself, and I am confirmed in my original idea that the Mahomedan law does not require any attestation in regard to written wills. The document, which is the Will of a Mahomedan gentleman, requires to be proved by our Anglo-Indian Law of Evidence in the same way as any other document; but it does not require to be attested, so far as Mahomedan law is concerned.”
Further, the question was regarding compulsory attestation of the will by the Mahomedans. It was observed that the Succession Act does not apply to Mahomedans. The Probate and Administration Act, 1977 does not require the Mahomedans to attest their Wills. Conclusively it is not mandatory for Mahomedans to attest their Wills.
Justice Patel also relied on Sarabai Amibai vs Mahomed Cassum Hajiman Mahomed (1918) and Niaz Deen & Ors vs Bir Deen & Anra (2015), which reaffirmed the position of law, which has not changed since Aba Satar. In conclusion, it was found that Rasubai Chinoy was a Cutchi Menon, governed by the Mohammed Law, and therefore her Will did not require attestation. Justice Patel recorded the Testamentary Department’s head’s statement which confirmed that the Will shall be probated by 19th March 2021.
Cases where the court remarked on the delayed case proceedings
In Sridhar Swain vs State of Odisha (2021), the Orissa High Court allowed a 31-year-old Criminal appeal, in which Appellant 2 was accused of abetting Appellant 1 in committing the offence of corruption regarding the execution of the repair works. The accused moved to the High court against the order passed by a special judge. In this judgement, Justice Sahoo remarked that the case has been proceeding at a “snail pace” because the FIR was registered on 5th January 1989, whereas the final order was passed on 4th January 2021. Therefore the High court acquitted the Appellant accused of corruption after 31 years of the proceedings.
Further, Justice Sahoo said that the Court’s valuable time must be saved, and action should be taken for the fast disposal of older criminal cases. Similarly, this could be possible only through preparation, commitment, discipline, and active cooperation from the members of the bar. Otherwise, the Court stated, “all the planning, mechanism and infrastructure development would fail to yield the desired result in docket management.”
In a similar court, Justice Sahoo acquitted the appellant from the charges of attempt to rape which was filed 30 years ago. The High Court after finding that the victim’s version in the court was at variance from what was recorded by the police during the investigation as evidence. Therefore, the victim was not held to be a truthful witness. (Satrughana Nag vs the State of Odisha (2020).
To provide justice through fair and just trial to all the people of India, the Indian judiciary system plays an important and dynamic role. Speedy and fair trials are essential for the citizens though not explicitly mentioned, come under the ambit of Article 21 of the Indian Constitution.
However, by referring to the above-mentioned case we can notice that the Indian judiciary system suffers from several structural problems, which consequently hampers its functioning. This includes delays and the backlog of several cases. As per the statistics in 2018 about 30 million cases were pending in numerous Indian courts. In the said case, while passing the judgement on an uncontested petition which was pending in the court for 31 years, Justice Gautam Patel remarked that “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 thirty-one years.” Further while granting probate he also remarked that “at this stage perhaps I should enter only one solitary comment: nothing changes even after 150 years.”
Thus, the delays in court proceedings are endemic. Therefore, the judiciary should focus on the pendency of the cases as it is essential for ensuring the public’s confidence in the judicial system. Lawyers and academicians need to explore and innovate models to reduce pendency in our judicial system so that the efficacy and effectiveness of the judicial system can be retained.
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