Sanchayita Lahkar

The High Court of Judicature at Bombay, at Aurangabad, Single Bench of Justice S. G. Chapalgaonkar has dismissed three connected appeals challenging the denial of probate and letters of administration under the Indian Succession Act. The court upheld the trial court’s decision to reject the appellant’s claim for probate based on two disputed wills and upheld the issuance of heirship and succession certificates in favour of the natural heirs of the deceased.

In the impugned decision, the Civil Judge, Senior Division, Aurangabad had rejected the appellant's petitions for probate and administration under Sections 294 and 299 of the Indian Succession Act while granting succession rights to the respondents under Civil M.A. No. 2151/2021. The High Court held that the appellant had failed to discharge the legal burden of proving due execution of the wills and had not cleared material suspicious circumstances surrounding them. Accordingly, the court declined to interfere with the trial court's findings, ruling that the natural heirs were entitled to succeed to the estate of the deceased in absence of a validly proved testamentary disposition.

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The present appeals arose from a common judgment dated 30.09.2023 rendered by the Civil Judge, Senior Division, Aurangabad in three civil miscellaneous applications. The three proceedings were clubbed and adjudicated together.

The appellant, Sunil s/o Vitthal Shinde, filed two applications: Civil M.A. No. 293/2023 and Civil M.A. No. 294/2023 seeking probate and letters of administration in respect of certain movable and immovable properties, including fixed deposits held in Maharashtra Gramin Bank, allegedly based on two wills executed by one Tajuddin Noor Mohammad Shaikh. The third proceeding, Civil M.A. No. 2151/2021, was initiated by the respondents Ali Shan and others seeking heirship and succession certificates in their favour as natural legal heirs of the deceased.

Tajuddin Noor Mohammad Shaikh, by birth a Muslim, was a religious scholar and preacher of Hindu scriptures. The appellant claimed that Tajuddin Shaikh had resided with him and his family since a young age and had effectively become a member of the appellant's household. The appellant further contended that during his lifetime, Tajuddin Shaikh acquired movable and immovable property and created fixed deposits from his own earnings. It was the appellant’s case that out of affection and in recognition of lifelong companionship and service, Tajuddin Shaikh executed two wills—first dated 11.12.2013 and the second dated 28.09.2020—bequeathing his entire estate to the appellant.

Following the death of Tajuddin Shaikh on 27.09.2021 due to cardiac arrest, the appellant was allegedly handed over both wills by one Appasaheb Admane. The appellant sought legal recognition of the wills and prayed for grant of probate and letters of administration accordingly.

The respondents, including Ali Shan, contested the appellant’s claims. They asserted that Tajuddin Shaikh never renounced Islam and continued to observe Muslim practices throughout his life. His funeral was conducted according to Muslim customs, and a dome was constructed in his memory by the respondents. The respondents denied the execution of any will and contended that the documents presented by the appellant were forged with intent to usurp property. They asserted their status as natural heirs of the deceased and sought recognition of their right to succeed under personal laws.

The trial court after hearing the parties granted the relief sought under Civil M.A. No. 2151/2021 and rejected the appellant’s petitions. The appellant, aggrieved by the rejection of his claims, preferred the present first appeals before the Bombay High Court.

The High Court recorded that “claim of appellant for issuance of Probate or Letter of Administration has been rejected on following counts”. These included the purchase of stamp paper for the will in the name of the appellant, bequest of property already transferred, inclusion of property in the will prior to its actual acquisition, and the bar under Muslim law on bequest beyond one-third of the estate.

On the question of religious identity, the court observed that “Undisputedly, Tajuddin Shaikh was Muslim by birth” and that “there is nothing to show his conversion to Hinduism.” The court recorded that “witnesses of appellant namely Appasaheb and Rajendra gave vital admissions, which depicts that Tajuddin Shaikh never renounced Muslim religion.”

Regarding the legal requirements of proving a will, the court quoted the Supreme Court’s position: “The propounder has to establish execution of Will and remove suspicious circumstances surrounding execution of Will.” It noted that under Section 63 of the Indian Succession Act, it is also necessary to establish the “testamentary capacity and signature of testator.”

In examining the purchase of stamp paper, the High Court disagreed with the trial court's conclusion. It stated: “contention of Mr. Patni, learned Advocate that this was purchased by Tajuddin Shaikh for appellant appears to be more probable and acceptable.” However, it added that this was only one aspect and other circumstances remained unaddressed.

Addressing the rule under Muslim law, the court referred to “Chapter 18 of Mohammedan Law (Mulla),” and recorded: “power of Muslim to bequest has been limited or restricted in two ways, namely, he cannot Will for more than 1/3rd of his estate, and secondly, he cannot bequest to an heir validly, unless some conditions are fulfilled.” The court observed that while the will might be valid to the extent of one-third, the burden was on the appellant to prove it within that limit.

Regarding Gut No.177, which was gifted to respondent Alishan and had undergone mutation in official records, the court noted: “in natural course, Tajuddin Shaikh would have explained aforesaid fact. This circumstance is not properly clarified by appellant.”

On another critical point, the court observed that land Gut No.2, referenced in the 2013 will, was purchased only in 2014. The court stated: “No explanation is coming forward from appellant as to how in the Will executed in the year 2013, there is reference of land purchased after six months of execution of Will.” It noted that “this Court, therefore, holds that appellant failed to remove suspicious circumstances.”

Finally, the court addressed the similarity between both wills, stating: “Mr. Khan, learned Advocate appearing for respondents points out that Will of 2013 and 2020 are word to word same and uses same font.” It recorded: “There appears some substance in contention... There is no reason to interfere in conclusion drawn by Trial Court.”

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The High Court concluded the matter by upholding the decision of the trial court. The operative portion of the judgment reads:

“So far as grant of heirship certificate and succession certificate in the name of Alishan and others vide Civil M.A. No.2151/2021, there is no reason to interfere, since respondents are natural successors of Tajuddin Shaikh, particularly when it is held that appellant failed to prove valid execution of Will in his favour and remove suspicious circumstances as to execution of Will.”

Further, the court held: “Consequently, First Appeals sans merits and accordingly, stand dismissed.”

The Court thereby upheld the order granting heirship and succession certificates in favour of the respondents and confirmed the rejection of the probate and letters of administration sought by the appellant. No costs or further directions were issued in the judgment.

Advocates Representing the Parties

For the Petitioners: Mr. P. F. Patni, Advocate

For the Respondents: Mr. Mohsin Khan, Advocate; Mr. V. S. Badakh, AGP

Case Title: Sunil s/o Vitthal Shinde v. Ali Shan s/o Noor Mohammad Shaikh & Others

Neutral Citation: 2025:BHC-AUG:11091

Case Number: First Appeal No. 214 of 2024, First Appeal No. 215 of 2024, First Appeal No. 722 of 2025

Bench: Justice S. G. Chapalgaonkar

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