Case Note & Summary
The plaintiffs filed a Review Petition No. 41 of 2010 seeking review of an order dated 14th October 2010 passed in Notice of Motion No. 2974 of 2008 in Suit No. 2510 of 2008. The suit was filed by the plaintiffs for administration of the estate of the deceased son of plaintiff No.1 and brother of the other plaintiffs, on the ground of intestacy. The defendant, who is the widow of the deceased, produced a Will of the deceased. The marriage of the defendant and the deceased was registered under the Special Marriage Act. The court noted that consequent upon such registration, the parties would be governed by the Indian Succession Act for succession, both intestate and testamentary. Therefore, the deceased, being a Muslim, would have no restrictions under Muslim personal law to bequeath only 1/3rd of his property or require consent of heirs; he could bequeath the entire property. However, the Will would need to be proved by the propounding heirs. The court also observed that probate of the Will was not required under the Indian Succession Act as it applies to Muslims. Based on these facts, the court had framed issues similar to those in testamentary suits and held that the defendant had the right to begin evidence as the relationship and properties were admitted. The plaintiffs sought review on the ground of an error apparent on the face of the record. The court, after hearing both sides, found no error apparent and dismissed the review petition.
Headnote
A) Civil Procedure - Review - Error Apparent on Face of Record - Order dated 14th October 2010 held no error apparent; review dismissed. (Paras 1-6) B) Succession - Marriage under Special Marriage Act - Applicability of Indian Succession Act - Muslim married under Special Marriage Act governed by Indian Succession Act for succession, both intestate and testamentary; restrictions under Muslim personal law on bequeathing only 1/3rd property and requirement of heirs' consent do not apply. (Paras 3-4) C) Succession - Will - Probate - Muslim Will - Probate not required for Will of Muslim even if Indian Succession Act applies to succession; Will can be proved in suit itself. (Para 3) D) Evidence - Onus of Proof - Right to Begin - In suit for administration where Will propounded, onus on defendant to prove Will; defendant has right to begin evidence. (Para 4)
Issue of Consideration
Whether the order dated 14th October 2010 suffers from an error apparent on the face of the record warranting review.
Final Decision
Review Petition No. 41 of 2010 is dismissed.
Law Points
- Marriage under Special Marriage Act governs succession by Indian Succession Act
- Muslim personal law restrictions on bequest do not apply
- probate not required for Muslim Will under Indian Succession Act
- onus to prove Will on propounder
- right to begin evidence on defendant when Will propounded
