Family Law

Bilquis Zakiuddin Bandookwala v. Shehnaz Shabbir Bandukwala

2011 (1) All MR 550; 2011 (1) Mah LJ 963

Facts

The dispute concerned the estate of a deceased Muslim man.
His mother and other relatives sought administration of the estate on the footing that he had died intestate.
His widow, Shehnaz, relied upon a will allegedly executed by the deceased.
The marriage between the deceased and Shehnaz had been solemnised and registered under the Special Marriage Act, 1954.
An earlier decision in the proceedings held that because of Section 21 of the Special Marriage Act:
succession was governed by the Indian Succession Act;
the deceased was not limited by the Muslim-law rule permitting testamentary disposition of only one-third without consent.
A further question then arose:
if the Indian Succession Act governed the succession, was probate of the will compulsory under Section 213?
The relatives sought review on this point.

Whether a Muslim who marries under the Special Marriage Act can bequeath the whole estate.
Whether the will of such a Muslim requires probate before being relied upon.
Whether substantive succession rules and procedural probate requirements must be treated identically.

Section 21 of the Special Marriage Act ordinarily makes succession to the property of persons married under the Act subject to the Indian Succession Act.
Consequently, Muslim testamentary restrictions such as:
the one-third limit;
requirement of heirs’ consent, do not govern the extent of testamentary power in such a case.
Section 213 of the Indian Succession Act is procedural.
Section 213(2) exempts wills made by Muslims from the compulsory-probate bar.
The probate exemption depends upon the testator being Muslim, not upon whether the Muslim marriage was solemnised under personal law or under the Special Marriage Act.
Absence of compulsory probate does not mean that the will is automatically genuine.
It must still be proved under:
Section 63 of the Indian Succession Act;
Sections 68 and 71 of the Evidence Act.

The Court drew a careful distinction between two questions:
How much property could the deceased bequeath?
What procedural method was necessary to prove the will?
Section 21 SMA answered the first question.
Because the marriage was under the Special Marriage Act, the Indian Succession Act governed substantive succession.
The deceased could therefore bequeath the entire estate without obtaining consent from his Muslim heirs.
However, Section 213(2) separately addressed the procedural requirement of probate.
The deceased remained a Muslim even though he had married under a secular statute.
The Special Marriage Act did not erase his religious identity for every procedural provision.
Therefore, the statutory exemption from compulsory probate continued to apply.
The widow could rely upon the will in the pending administration suit without first initiating separate probate proceedings.
But she still had to prove:
execution;
signature;
attestation;
testamentary capacity.
The relatives remained free to challenge the will’s genuineness in the existing suit.
Thus, the probate exemption did not create an evidentiary shortcut or make the alleged will conclusive.

The deceased Muslim, having married under the Special Marriage Act, possessed full testamentary power under the Indian Succession Act.
His will did not require compulsory probate because Section 213(2) continued to exempt Muslim wills.
The widow was nevertheless required to prove the will in the administration proceedings.
Use this case for: distinction between substantive succession under Section 21 SMA and procedural exemption from probate under Section 213(2).