Mrs. Mumtaj Mohammed Yunus Shaikh v. Ms.Fatmabai Saraf Ali

BEFORE : MR. DILIP S. GURAV, FIRST ASSISTANT MASTER Date: 25th October, 2024 CALLED FOR COMPLIANCE :

39 TP/2679/2024 ) Ms. Shaheen Sayed /b. S. K. Pise, Advocate for petitioner P.C.:

1. Perused Petition. Heard Ld. Advocate for petitioner. This petition is filed by petitioner namely Mumtaj Mohammed Yunus Shaikh, being one of the beneficiaries named under the Will executed by Fatmabi Saraf Ali (herein after the same is referred to as "Testatrix"), for grant of Letters of Administration with Will annexed. Testatrix said to have died on 30.11.2019 at Mira Road, Thane. Petitioner filed the copy of death certificate (which is annexed to petition as Exhibit-A), identity proof of the testatrix (which is on page No. 16 of the petition), Will, petitioner's oath, Affidavits of legal heirs of the testatrix.

2. The petitioner has explained the delay Para No. 11A as per Rule 382 of the Bombay High Court (Original Side) Rule, 1980 (for short "Rules"). Ld. Advocate for petitioner has carried out the corrections and add para No. 11A of the petition to explain the delay.

3. The testatrix has not appointed Executor to execute the Will. The petitioner is being one of the beneficiaries named under the Will. Hence, petition is tenable.

4. Petitioner stated that the testatrix left behind her last Will and Testament which was duly executed at Mumbai on 22.12.2014, in English language. Ld. Advocate for petitioner submits that the original Will No. 1092 of 2024 is handed in separately for being filed and kept in a safe place in the Office of the Prothonotary and Senior Master, High Court, Bombay.

5. Petitioner states that parents of testatrix were predeceased to her and testatrix was survived by legal heirs shown in the paragraph No. 7 of the petition, as per the provisions of the Mohammedan Law applicable to

Sunni Muslim. Testatrix died as spinster. .....2 - 2 - Testatrix died leaving behind two brothers. Testatrix two brothers namely Tayabali Sharat Ali and Mohammed Husen Kotwal. One brother Tayabali Sharat Ali died as bachelor on 12.02.1992 and another brother namely Mohammed Husen Kotval died on 03.01.2020 leaving behind two sons and two daughters. Two sons of Mohammed Husen Kotval are namely Mustafa Mohammed Hussain and Firoj Shaikh and two daughters are namely Mumtaj Mohammed Yunus Shaikh - petitioner herein and Shenaz Nisar Ahmed Shaikh. Said Firoz Shaikh died on 23.05.2022 as a bachelor. One of the daughter namely Shenaz Nisar Ahmed died on 31.05.2023 leaving behind Shaikh Nisar Ahmed Bashir Ahmed - husband, Sana Adnan Parmar - daughter and Shaikh Eajaj Nisar Ahmead - son.

Consent Affidavits of Mustafa Mohammed Hussein dated 31.01.2024, Shaikh Eajaj Nisar Ahmed dated 31.01.2024, Shaikh Nasir Ahmed Bashir dated 31.01.2024 and Sana Adnan Parmar dated 14.02.2024 are on record. They have given their consents in the form of Affidavits, which are filed on the record by the petitioner and consented for the issuance of Letters of Administration with Will annexed in favour of the petitioner without justifying any surety in respect of their shares in the estate of the testatrix. They have waived the service of Citation. The petitioner affirmed that there are no other legal heirs of the testatrix other than mentioned in para No. 7 of the petition.

6. Affidavit of Service of General Citation is filed, stating that citation has been affixed on the Notice Board of the Hon'ble High Court, Bombay and notice board of the Collector's office on 15.07.2024. Notice to collector has been sent.

7. The petitioner has filed the Affidavit and additional Affidavit of Kaneez Fatima Mohd. Rafiq dated 24.01.2024 and 11.10.2024, one of Attesting Witness to the Will, in the Form No.102 of the Bombay High Court (Original Side) Rules, 1980. Attesting Witness deposed

that she was present and testatrix put her thumb impression on the Testament papers in ......3 - 3 - presence of her and another witness. According to her, all additions and alteration, in a Will, were existed at the time of execution and before signing the Will. Hence, there is sufficient compliance of the Rule 383 of the Rules. Attesting Witness deposed that the contents of the said Will has been read over to testatrix and explained in Hindi language. She understood the contents of the Will before its execution and then put her thumb impression on the Will. Hence, there is compliance of Rule 419 of the Bombay High Court (Original Side) Rules, 1980. Attesting witness further deposed that at the time of execution of the Will, testatrix was of sound and disposing mind, memory and understanding. Hence, enough evidence is on record to accept the execution of the Will and petitioner is succeeded to prove the execution of Will.

8. Properties mentioned in the schedule of the petition are referred in the Will. Ld. Advocate for petitioner submits that as mentioned in para No. 5 of the petition, which reads as under :

"That the Petitioners have truly set forth in Schedule No.I hereto annexed and marked as Exhibit - "D" all the properties and credits which the deceased died possessed of or entitled to at the time of her death which have or are likely to come to Petitioner hands".

The Ld. Advocate for the petitioner submitted that properties available to the testatrix at the time of her death are mentioned in the Schedule-I of the petition. Ld. Advocate for petitioner submits that as per Will, testatrix has bequeathed property mentioned in Schedule-I of the petition to Mumtaz Mohammed Younis Shaikh - petitioner herein and Shenaz Nisar Ahmed Shaikh in equal share. One of the beneficiaries namely Shenaz Nisar Ahmed Shaikh died on 31.05.2023. She died leaving behind her husband namely Shaikh Nisar Ahmed Bashir Ahmed, only

daughter namely Sana Adnan Parmar and only son namely Shaikh Eajaz Nisar Ahemed. ......4 - 4 - Consent Affidavits of Shaikh Nisar Ahmed Bashir Ahmed, Sana Adnan Parmar and Shaikh Eajaz Nisar Ahemed are on record.

9. Petitioner has executed the Administration Bond dated 29.06.2024, in the prescribed format. Hence, following order:

ORDER

1) Petition is granted.

2) Office to issue Letters of Administration with Will annexed as per the provisions of the Indian Succession Act, 1925 to the petitioner and upon satisfaction that the administration Bond is properly executed, as per the Rules.

3) Before issuance of above said Letters of Administration with Will, the office to verify that there is no cross Petition is pending or caveat is filed. Office to act accordingly.

25.10.2024 FIRST ASSISTANT MASTER