Miscellaneous Petition (L) No. 1731 of 2014. Case: Hameed Jaffar Ahmed Ibrabim Mandeel Vs Farhat Mehdi Mandil and Ors.. High Court of Bombay (India)
| Case Number | Miscellaneous Petition (L) No. 1731 of 2014 |
| Counsel | For Appellant: Uday Bobade and Aditi Bhatt i/b Y.R. Shah, Advs. and For Respondents: J.M. Sidhwa i/b Bina Rao & Co. |
| Judges | G. S. Patel, J. |
| Issue | Personal Law |
| Judgement Date | March 11, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
G. S. Patel, J.
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Heard.
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This is a Petition for revocation of a probate granted to Respondent Nos. 3 and 4 in respect of a Will dated 19th September 2003 made by one Mr. Mendi Mandil ("Mehdi"), who died in Mumbai on 3rd October 2003. The 1st Respondent to this revocation Petition is Mehdi's widow, Farhat, and the 2nd Respondent is their daughter Mehjabeen. Respondent Nos. 3 and 4 were executors appointed under that Will. It is they who sought and obtained the probate.
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Respondent Nos. 5 to 15 support the Petitioner. They all claim to be the heirs according to Shia Law of Inheritance. The Petitioner is Mehdi's brother.
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Affidavits in Reply and Rejoinder have been filed. To one of these Affidavits, filed by Respondent No. 8, I will return shortly at the invitation of Ms. Sidhwa, learned Advocate for the Petitioner, since I believe she is right when she says that this Affidavit is thoroughly irresponsible.
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However, the point that Mr. Bobade for the Petitioner canvasses is that under traditional Shia Laws of Inheritance, the Petitioner and Respondent Nos. 5 to 15 are all, what he calls "sharers" and have a pre-defined fractional share in Mehdi's estate. If he is right, and they do, they undoubtedly have a caveatable interest, and citations ought to have been served on them; and, consequently, since that was not done, the revocation Petition would have to succeed. If he is not right in his submission, however, the Petitioner and his supporting Respondents cannot be said to have any caveatable interest at all, and the Revocation Petition must fail.
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It is not in dispute that Mehdi's parents predeceased him, and that he was survived by the 1st Respondent, his widow Farhat, and the 2nd Respondent, his daughter, Mehjabeen. In Mr. Bobade's submission, in Shia Law the shares of siblings are predefined. He bases this submission on a table of sharers in Shia Law to be found in Mulla's Principles of Mahomedan Law (19th Edition, 1990). That table relates to Sn.90 of the commentary.
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Sn.90 of the commentary falls under Chapter VIII of this treatise. That Chapter is entitled Shia Law of Inheritance. Sections 87 to 92, 96 and 97 are important. In particular, Sections 87, 88 and 89 must also be read together. For convenience, Sections 87 to 92, 96 and 97 are reproduced below:
"87. Division of heirs. The Shias divide heirs into two groups, namely, (1) heirs by consanguinity, that is, bolld relations, and (2) heirs by marriage, that is, husband and wife.
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Three classes of heirs by consanguinity. (1) Heirs by consanguinity are divided into three classes, and each class is subdivided into two sections. These classes are respectively composed as follows:-
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(i) Parents;
(ii) children and other lineal descendants h.1.s.
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(i) Grandparents h.h.s. (true as well as false);
(ii) brothers and sisters and their descendants h.1.s.
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(i) Paternal, and (ii) maternal, uncles and aunts, of the deceased, and of his parents and grandparents h.h.s., and their descendants h.1.s.
(2) Of these three classes of heirs, the first excludes the second from inheritance, and the second excludes the third. But the heirs of the two sections of each class succeed together, the nearer degree in each section excluding the more remote in that section [Baillie, II, 278,k 280, 285].
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Husband and wife. The husband or wife is never excluded from succession, but inherits together with the nearest heirs heirs by consanguinity, the husband taking 1/4 or 1/2, and the wife taking 1/8 or 1/4 under the conditions mentioned in the Table of Sharers on page 84.
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Table of SharersShia Law. (1) For the purpose of determining the shares of heirs, the Shias divide heirs into two classes, namely, Sharers and Residuaries. There is no separate class of heirs corresponding to the "Distant Kindred" of Sunni law.
(2) The sharers are nine in number. The Table on page 84 gives a list of Sharers together with the shares assigned to them in Shia law.
(3) The descendants h.1.s of Sharers are also Sharers.
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Residuaries. (1) All heirs other than Sharers are Residuaries.
(2) The descendants h.1.s. Of...
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