As Mr Justice Tyabji put it in Aba Satar, the pure question was to whether under Mahomedan law (and Cutchi Memons were accepted to be so) attestation was necessary of a Will. This is what Mr Justice Tyabji then said:
“To my mind there is nothing in the Mahomedan law which requires attestation of Wills. However, I have looked into the Law Books to satisfy myself, and I am confrmed in my original idea that the Mahomedan law does not require any attestation in regard to written wills. A document, which is the Will of a Mahomedan gentleman, requires to be proved by our Anglo-Indian Law of Evidence in the same way as any other document; but it does not require to be attested, so far as Mahomedan law is concerned.
The next question is whether there are any legislative enactments to make it compulsory on Mahomedans to have their Wills attested. The Succession Act does not apply to Mahomedans. The Hindu Wills Act also does not apply to them. And as regards the Probate and Administration Act, there is nothing in it which requires attestation of Mahomedan Wills. These are the only enactments which would throw any light in the matter. Therefore, there is nothing which makes it compulsory on Mahomedans to attest their Wills.
REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY PETITION NO. 135 OF 1990
Mohamed Obedulla Chinoy And Rasubhai Suleman Chinoy …Deceased
CORAM: G.S. PATEL, J
DATED: 10th March 2021
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