Differing to some extent with an earlier judgement, a single judge of the Bombay high court recently held that a will made by a Muslim need not be probated if he/she is governed by the Indian Succession Act.
Ordinarily, a will cannot be implemented unless it is certified (probated) by a competent court. However, justice Roshan Dalvi, who was dealing with a review petition filed by one Bilquis Bandookwala challenging the will of her deceased son (which gave property to his wife), held that Section 213 of Indian Succession Act (ISA) carves out an exception for Muslims.
Under the customary Muslim law, a person cannot bequeath more than one-third of his property by will. But if he has married under Special Marriage Act, then he can will away his entire property, and succession is governed by ISA, and not Muslim personal law.
In an earlier ruling, Justice Nishita Mhatre of Bombay high court had held that once a Muslim comes into purview of ISA by virtue of marriage under Special Marriage Act, “all rigours of ISA would apply”. Relying to this, Bilquis Bandookwala's lawyer argued that the son's will cannot be relied upon unless probated. But justice Dalvi disagreed with this roposition. "The exception under Section 213 (2) gives them (Mohammedans) a facility to propound a will which is not probated,” justice Dalvi held.