Rejecting Benami Claims at the Threshold: Supreme Court’s 08.05.2026 Order VII Rule 11 Judgment Critically Examined

 

Executive overview

In its judgment MANJULA AND OTHERS Vs    D.A. SRINIVAS 2026 INSC 465  dated 8 May 2026, the Supreme Court has converted Order VII Rule 11 CPC from a largely under‑used procedural filter into a robust jurisdictional gatekeeper, particularly in suits tainted by benami arrangements, unlawful land transactions and disqualifications under succession law. The decision arises from a challenge to a trial court order rejecting a plaint as barred under the Prohibition of Benami Property Transactions Act, 1988 ("Benami Act") and Section 25 of the Hindu Succession Act, 1956, which was reversed by the Karnataka High Court. On appeal, the Supreme Court restores and fortifies the approach of the trial court, while laying down an exacting standard for pleadings that seek to dress up benami and unlawful claims as innocuous civil disputes.

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Bombay HC: Testamentary demarcation amounts to partition.

 As regards jointness, it is not in dispute that the property has devolved on three sons by virtue of will executed by their father. The will demarcates the portion allotted to each son. There is a specific averment in the plaint that the father had divided the property between three brothers by virtue of the will. It is further stated that family of each brother was in occupation of the specific portion allotted to him by virtue of the will. Thus, separate identifiable portions in the suit house were bequeathed by the father in favour of each son. There is clear demarcation of share of each son in the will. It is, therefore, clear that the brothers got three separately demarcated shares in the suit property by virtue of the will. The will vested each brother with a separate share in the suit property and each brother received separate possession thereof. The plaintiffs and defendant Nos.4 to 13 are descendants of the said three brothers. The suit house, therefore, cannot be said to be a joint family dwelling house of the three sons. The contention is fortified by the plaint averments. The only contention in the plaint with respect to the suit property being joint residential house is that the same was jointly mutated in the records of City Survey Department and Nagpur Municipal Corporation. It is well settled that the mutation entries are merely for fiscal purposes and by themselves cannot determine the nature of property held by a co-owner. The contention that the property is joint, is sufficiently negated by the contents of the will and other averments in the plaint.  {Para 20}

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 91 of 2025

Decided On: 16.10.2025

Saroj and Ors. Vs. Umesh and Ors.

Hon'ble Judges/Coram:

R.W. Joshi, J.

 Citation: 2025:BHC-NAG:11283, MANU/MH/6940/2025.

Read full judgment here :Click here.

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Supreme Court: State Cannot Invoke Doctrine Of Escheat To Challenge A Will Which Is Granted Probate

6.2. The grant of probate by a competent court of law can be assailed only by those who are the likely heirs if the Will is to fail, by either filing an appeal against it or by seeking revocation of the grant of probate under Section 263 of the IS Act, 1925. Further, it is only when there is failure of heirs that the estate of an intestate Hindu would devolve on the Government under Section 29 of the Act. This means that till that stage arrives, the Government is a stranger to the probate proceedings as well as any proceeding regarding succession under the personal law. Merely because the State of Rajasthan in the instant case has invoked the Rajasthan Escheat Regulation Act, 1956, would not give locus standi to assail the grant of probate of the Will of the testator. Hence, we have considered the locus standi of the State of Rajasthan to file these special leave petitions as a preliminary issue in these Special Leave Petitions.

6.3. In view of the above, we find that the State of Rajasthan in the instant case has no locus standi to challenge the judgment of the Division Bench of the High Court on the strength of the escheat of the properties of the testator. Section 29 of the Act does not apply in the instant case as this is not a case of intestate succession but one of testamentary succession as probate of the Will has been granted by High Court.

6.4. We may also mention that in the event the probate has been granted illegally to the legatees of a Will inasmuch as the Will itself is not a valid Will, then under Section 263 of the IS Act only the persons who could have succeeded, by the Will being declared invalid namely, the successors under the Act, as per Section 8 thereof could have filed an application under Section 263 of the IS Act for revocation of the grant of probate and none else.

6.5. In other words, we clarify that it is only in the event of intestate succession, Section 29 of the Act applying that there would be a devolution of the estate of a deceased male Hindu on the Government and not otherwise. Since such a situation does not arise in the instant case, as probate of the Will of testator has been granted by a competent Court of law; this is a case of testamentary succession.

 In the Supreme Court of India

(Before B.V. Nagarathna and Satish Chandra Sharma, JJ.)

SLP (C) No(s). 14721-14723/2024

State of Rajasthan Vs  Ajit Singh and Others 

Decided on September 1, 2025

Citation: 2025 SCC OnLine SC 1992

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Whether the execution of the Muslim will is proved if propounder of will fails to examine scribe of will?

 While a Mohammedan Will is required to be proved under Section 67 of the Evidence Act, 1872, a Will governed by the provisions contained in Part VI of the Indian Succession Act, 1925, is required to be proved as laid down under Section 68 of the Evidence Act, 1872. Therefore, the validity of the will in question Exhibit DW-2/A is required to be examined under the provisions of Section 67 of the Evidence Act.

10. Section 67 of the Evidence Act, reads as under:-

“67. Proof of signature and handwriting of person alleged to have

signed or written document produced.- If a document is alleged to be

signed or to have been written wholly or in part by any person, the

signature or the handwriting of so much of the document as is

alleged to be in that person’s handwriting must be proved to be in his

handwriting.”

11. Where the document is written by one person and signed

by another, the handwriting of the former and the signature of the later have both to be proved in view of Section 67 of the Evidence Act. What Section 67 of the Evidence Act refers to is the signature of a witness who counter signs a document as a person who was present at the time when the document was signed by another person. This was so held by the learned Division Bench of the Gujarat High Court in Miyana Hasan Abdulla and another vs. State of Gujarat AIR 1962 Gujarat 214 and I see no reason to take a different view.

12. In such circumstances, obviously no exception can be

taken to this part of the findings recorded by the learned first Appellate Court, whereby it drew an adverse inference against the appellants for not examining the scribe of the document Shri Shamshad Ahmed Qureshi, who was very much alive at that time and even, in case, he was suffering from ailment his statement could have conveniently been recorded on commission. The non-examination of the scribe assumes importance because the witness Lovender Singh DW-2 does not state to have witnessed Smt. Tulsa, the testator, putting her signatures over the Will.

Substantial questions of law are answered accordingly.

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No. 623 of 2008 a/w

RSA No. 624 of 2008

Date of decision: 20.4.2021

RSA No. 623 of 2008

Ashiq Ali (deceased) through his LRs  Vs  Yasin Mistri (deceased) through his LRs 

Coram

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Date of decision: 20.4.2021

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Important Notes on Muslim law

1) Notes on Testamentary Succession under Muslim law

https://www.lawweb.in/2020/04/notes-on-testamentary-succession-under.html

2) Intestate Succession under Muslim law

https://www.lawweb.in/2020/05/intestate-succession-under-muslim-law.html

3) Difference between Marz-ul-Maut and Donatio mortis causa

https://www.lawweb.in/2020/04/difference-between-marz-ul-maut-and.html

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Notes on Testamentary Succession under Muslim law

Who can administer the estate of a deceased Muslim?

The estate of a deceased muslim is to be administered in accordance with the Indian Succession Act,which has replaced all Islamic rules in the matter.

The person entitled to administer the estate of deceased muslim are in the order of priority,the executor appointed by his will,or the administrator appointed by the court, in cases where the deceased has not left a will.Failing both,his heirs are entitled to administer his estate.

A muslim can not dispose of by will more than one-third of what remains of his property,after payment of his funeral expenses and debts,and remaining two thirds must go to his heirs as on intestacy.

Three essential characteristics of a will under muslim law are:

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Whether application for removal of executor of will can be moved prior to grant of probate?

 I return now to the question of when an application under Section 301 can be brought and, specifically, whether the grant of probate is a condition precedent to the maintainability of the application for removal. Here, Ms. Iyer is correct in saying that such an application can be brought at any time. The findings and observations in FSC Amalnathan⁴ are apposite:

"5. The learned Counsel for the respondent, during arguments, contended that as the will is still not probated this petition is not a maintainable under Section 213 of the Act. According to him the petitioners want to rely on the terms of the Will to contend that the respondent has acted against the wishes of the testatrix and that as such he is liable to be removed and that the petitioners cannot rely on the terms of the Will without the same having been probated. The sum and substance of the argument was that the contents of the Will cannot be looked into without the Will being probated and that as admittedly the Will is till not probated this petition itself is not maintainable. The learned counsel for the petitioners, however, contended that (sic) the Will cannot be made use of for the purpose to establish rights under the Will without the same being probated, there is no bar for the Will being relied upon for a collateral purpose. He relied upon the decision reported in John Guruprakasam v. Yovel Nesal (MANU/KE/0015/1979 : AIR 1979 Ker 96 : ILR (1978) 2 Kar 335. Relying the decision in Bali Ram Dhote v. Bhupendra Nath Banerjee, (MANU/WB/0130/1978 : AIR 1978 Cal 559) he contended that the property vests in the executor immediately on the death of the deceased and the probate is not necessary to make an executor act and that the executor can even effect a sale. He therefore contended that for removal of a private executor under Section 301 probate of the Will is not a condition precedent.

6. Under Section 211 of the Act an executor of a Will of the deceased is a legal representative of the deceased for all purposes and the property of the deceased vests in the executor immediately after the death. The law is fairly well settled that the executor can exercise his powers as executor and act in accordance with the terms of the Will even though probate of the Will is not granted. In fact one of the points of distinction between an executor and administrator is that the executor may act even before he obtains probate but an administrator cannot act unless letters of administration are granted to him. The interest of an executor in the estate of the deceased vests in him immediately on the death of the testator.

7. Section 222 of the Act stipulates that probate shall be granted only to the executor appointed under the Will. Under Section 229 when a person appointed as executor has not renounced the executorship, letters of administration cannot be granted to any other person until citation has been issued calling upon the executor to accept or renounce his executorship. Under Section 231, if an executor renounces or fails to accept an executorship within the time limits for the acceptance or refusing thereof then the Will may be proved and the letters of administration with a copy of the Will annexed may be granted to the person entitled to administration in case of intestacy. Thus, where an executor accepts executorship no one else can seek letters of administration. When such is the case, if an executor who starts functioning as an executor without obtaining probate and his actions are in derogation of the terms of the Will and prejudicial to the interest of the estate, the beneficiaries cannot remain helpless. They cannotassert their rights under the Will as legatees without probate of the Will by filing a suit. In such a case the remedy available is to apply to the court for removal of the executor under Section 301. Such proceedings cannot be considered to be a proceeding to establish the right of an executor or legatee.

8. Section 213(1) reads as hereunder:

"No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed."

9. The Supreme Court in Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Bose (MANU/SC/0399/1962 : AIR 1962 SC 1471) : 1962 All LJ 695 : ILR (1962) 2 All 683 has held that Section 213 acts as a bar to the establishment of rights under a Will by an executor or a legatee, unless probate or letters of administration of the Will have been obtained and that it is immaterial whether the right is claimed as the plaintiff or as a defendant. Thus the bar comes into play only when a right as an executor or a legatee under a Will is sought to be established. However an unprobated will can be admitted in evidence for collateral purposes in any proceeding other than a probate proceeding. This position is made clear in several decisions and also in the decision reported in John Guruprakasham's case (see also Mr. Sen's Indian Succession Act, 1955, second edition p. 425). As under law an executor is competent to administer the estate even without grant of probate, it has to be held that to maintain an application for his removal probate of the Will is not a condition precedent. The proceeding to remove an executor cannot be considered to be proceeding for establishment of right of an executor or a legatee. In the present case it is undisputed that the petitioners and respondent have been appointed as executors under the Will and that they have accepted executorship. As such it cannot be said that the petition is not maintainable under Section 301 only on the ground that probate of the Will has till not been granted.

IN THE HIGH COURT OF BOMBAY

Miscellaneous Petition No. 38 of 2011 in Testamentary Suit No. 9 of 2007 in Testamentary Petition No. 223 of 2006

Decided On: 14.12.2016

 Radhika Bhargava  Vs.  Arjun Sahgal and Ors.

Hon'ble Judges/Coram:

G.S. Patel, J.

Citation: 2017 (1) ALLMR 652

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Whether a Mohammedan will does require probate or letters of administration?

The very fact that the only person whose rights could be affected because of the will have accepted the same as genuine and consented to the transmission of the shares in favour of the petitioner, and there being no other third party rights involved, the respondent company was not legally justified in holding its Board meeting without there being any such material, that the will was not genuine and calling for probate or letters of administration when the same was not required to be obtained in respect of a will executed by a Mahanaden which after due proof could be admitted in evidence.There is another aspect of the matter. Enamul Haque died in June, 1984, and the will was alleged to have been executed on 5.1.1983 and kept with his lawyer. Though almost 15 years have gone by, yet there was no other claimant for the shares or any counter claim made by anyone else over the shares in question. Under the circumstances, there was no need for the respondent company to insist on filing succession certificate and or letters of administration/probate. 

Company Law Board

Khurshid Alam vs P. Pagnon Company (P) Limited And ... on 4 September, 2001

Equivalent citations: 2002 108 CompCas 523 CLB

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