Research › Search › Judgment

Bombay High Court · body

2013 DIGILAW 2079 (BOM)

Panna Surendra Mehta v. Jaisukh Krishnalal Shah

2013-10-07

R.D.DHANUKA

body2013
JUDGMENT : 1. By this Notice of motion filed by the Petitioner/Plaintiff, the Petitioner seek a declaration t the Caveat dated 16.1.2013 filed by Jitendra Krishnalal Shah and Jaisukh Krishnalal Shah a not maintainable and seeks dismissal thereof. 2. Some of the relevant facts for the purpose of deciding the Notice of Motion are summarised under : 3. To appreciate the issues involved in this Notice of motion, it would be appropriate reproduce the Geneology and relationship of the present Caveators with the deceas Jaswantlal Jolia. Those are reproduced as under : Family Tree JASWANTLAL N. JOLIA Veenabenwife ` Pre-deceased Died : 3.3.2007. (Died : 26.1.2004) TESTATOR (Will dated 10.8.2002) Mrs. Ramaben Mrs. Indiraben Mrs. Trilochanaben T. Fozdar Krishnalal Shah V.Bankley (Only then sister surviving sister died: 1955-56 (Original Caveator) (predeceased) Died: 11.11.2001 Will dt. 11.2.2008) _____________________________________________________________ Jaisukh Jitendra Kishore Panna Thakorlal Mrs. Devyani Mrs. Poornima Mrs. Bhang Chandresh Fozdar Bhagat Latik Shah Sant(son) Parekh (Marr. daughter) Takshal (H) New Caveators by virtue of will of Trilochanaben (Dt.11.2.2008) Present Caveators in their Capacity as heirs of Trilochanaben 4. A perusal of the above Geneology shows that Jaswantlal Jolia who is alleged to ha executed a will dated 10.8.2002 expired on 26.1.2004. Wife of the deceased Veenab predeceased the said deceased. The said deceased left three daughters namely Mrs.Ramab K.Shah, who pre-deceased the said deceased, Mrs Indiraben V.Bankley also pre-deceased t said deceased and Mrs.Trilochanaben Thakorlal Fozdar the only then surviving sister died 11.11.2010. Mrs.Trilochanaben left behind her six legal heirs. Mrs.Ramaben K. Shah daughter the said deceased who pre-deceased the said deceased left behind four legal heirs nam Jaisukh, Jitendra, Kishore and Mrs.Panna. 5. It is the case of the Caveators that the said Mrs.Trilochanaben Fozdar had left a Will dat 11.2.2008 and she gave her entitlement in the estate of Jaswantlal Jolia the said deceased 50% to her legal heirs and balance 50 % to the legal heirs of Mrs.Ramaben Shah. On 3.3.20 Mrs.Veenaben Jaswantlal Julio expired. On 26.1.2004 Jaisukh expired. One Ashit Surend Mehta was alleged to have been appointed as an Executor by the said deceased in his W dated 10.8.2002. The said Ashit Surendra Mehta filed a Probate Petition bearing 243 of 2004 this Court. In the said Probate Petition, Mrs.Trilochanaben the only surviving sister of t deceased filed a Caveat. On 26.1.2004 Jaisukh expired. One Ashit Surend Mehta was alleged to have been appointed as an Executor by the said deceased in his W dated 10.8.2002. The said Ashit Surendra Mehta filed a Probate Petition bearing 243 of 2004 this Court. In the said Probate Petition, Mrs.Trilochanaben the only surviving sister of t deceased filed a Caveat. On filing the said Caveat by Mrs.Trilochalaben, the said Proba Petition was converted into a Suit. On 18.5.2009 the said Ashit Surendra Mehta who was t Executor to the said will of the said deceased expired. On death of the said Executor, t Probate Petition filed by him stood abated. 6. On 30.9.2009 Mrs.Panna Surendra Mehta who claims to be one of the beneficiary under t said Will dated 10.8.2002 filed a Petition for letters of administration with the Will annexed to t Petition (Petition No. 970 of 2009) in this Court. The said Petition for letters of administration w converted into a Suit (74 of 2011). On 11.10.2010 Mrs.Trilochanaben Fozdar expired. In view the demise of Mrs.Trilochanaben Fozdar, the Citation was served upon the legal heirs Mrs.Trilochanaben. All the legal heirs of Mrs.Trilochanaben filed Caveats in the said Suit. 11.2.2008 Mrs.Trilochanaben is alleged to have executed a Will by which 50 % of the prope which she would have inherited from the estate of Jaswantlal Jolia in case of intestacy sto bequeathed in favour of her pre-deceased sister Mrs.Ramaben K.Shah i.e. Jitendra Sha Jaisukh Shah, Kishore Shah and Panna Shah and remaining 50% stood bequeathed to her o children Chandresh Fozdar, Mrs.Devyani Bhagat,Mrs.Poornima Shah and Famini Parekh. 7. On 16.1.2013 Jitendra K.Shah who is alleged to be one of the executor of the Will Mrs.Trilochanaben and also the beneficiary has filed a Probate Petition in this Court (3 of2013). Jaisukh Krishnalal Shah and Jitendra Krishnalal Shah have filed Caveats in this Co in these proceedings on 16.1.2013 respectively. 8. Mr.Vora learned Counsel appearing for the Petitioner submits that the Caveators are claim rights in the property of Mrs.Trilokchanaben to the extent of 50% by virtue of the alleged Wil Mrs.Trilochanaben dated 26.2.2008. Probate Petition for obtaining Probate of the alleged Wil Mrs.Trilokchanaben is pending in this Court. 8. Mr.Vora learned Counsel appearing for the Petitioner submits that the Caveators are claim rights in the property of Mrs.Trilokchanaben to the extent of 50% by virtue of the alleged Wil Mrs.Trilochanaben dated 26.2.2008. Probate Petition for obtaining Probate of the alleged Wil Mrs.Trilokchanaben is pending in this Court. It is submitted that the Caveators are neither le heirs nor next of kin of either late Jaswantlal Jolia or of Mrs.Trilokchanaben in accordance w the provisions of Hindu Succession Act which are applicable to the parties. It is submitted that case of intestacy, these Caveators cannot inherit any property in accordance with the provisio of the Indian Succession Act, 1925. It is submitted that even if the Petitions filed by Mrs.Pan Surendra Mehta is dismissed, these Caveators who are not the legal heirs Mrs.Trilokchanaben would not inherit anything in the Probate Petition filed by these Caveator granted. 9. It is submitted that the claim of the Caveators is based on the premise that the Petition filed Mrs.Panna Surendra Mehta would be rejected and on such rejection, Mrs.Trilochanaben wo inherit the property of the deceased and in that situation, on the basis of the Will of s Mrs.Trilochanaben these Caveators as well as other beneficiaries of the said Will would inhe the property of late Mrs.Trilochanaben. It is submitted that only the legal heirs Mrs.Trilochanaben would have caveatable interest and not these Caveators who do not fall Class I as required for being the heirs of Mrs.Trilokchanaben or Jaswantlal Jolio. It is submitt that the property of the said deceased would be inherited by Mrs.Trilochanaben only if t Petition of Mrs.Panna Surendra Mehta is dismissed and is contingent upon dismissal of t Petitions filed by Mrs.Panna Surendra Mehta. It is further submitted that as of today, the Caveators have no caveatable interest and are not entitled to maintain such a caveat. 10. Mr.Vora learned Counsel placed reliance on the Judgment of this Court in the case ASHITKUMAR SURENDRA MEHTA VS.TRILOCHANABEN THAKORLAL FOJDAR report in 2008 (4) Bom C.R.372. The present Caveators have filed a Caveat in the same proceedin claiming to be the legal heirs of Mrs.Panna Surendra Mehta who pre-deceased the decease Notice of motion was filed by the Petitioner herein for dismissal of the said Caveat. 11. By an order and Judgment dated 3.3.2008 this Court held that succession open on the da of death. The present Caveators have filed a Caveat in the same proceedin claiming to be the legal heirs of Mrs.Panna Surendra Mehta who pre-deceased the decease Notice of motion was filed by the Petitioner herein for dismissal of the said Caveat. 11. By an order and Judgment dated 3.3.2008 this Court held that succession open on the da of death. Jaswantlal Jolia died on 25.1.2004. Thus succession opened on 25.1.2004. Situat prevailing a day before the date of death is required to be taken into account to consider t issue of succession. On 25.1.2004 Mrs.Ramaben K.Shah (sister) to whom these Caveato claim rights at that point of time was not alive as she pre-deceased the deceased. While allow the Notice of motion and dismissing the Caveat filed by these Caveators this Court consider that Mrs.Trilochanaben and Kanayalal Dalal were the surviving heirs being sister and brother per Class II, Entry I, Item (3) and (4) of the Schedule of theAct and since the present Caveato were the children of Mrs.Ramaben K.Shah, they would fall under Item No.3 and (4) of Class This Court also considered section 9 of Indian Succession Act,1925 and held that the Caveato were not next of kith and kin of the deceased and were not entitled to inherit the property of t deceased and thus had no caveatable interest to maintain the said Caveat filed by them. T Court thus rejected those two Caveats filed by the present Caveators. 12. It is not in dispute that these Caveators do not fall under Class I heir of the said deceas Jaswantlal Jolia. It is also not in dispute that the present Caveators do not fall in Class I heir Mrs Trilokchanaben. 13. Mr.Sharma, learned Counsel appearing on behalf of the Caveators submits that admitte Mrs.Trilochanaben was the sole surviving sister of the said deceased at the time of his death is submitted that since Mrs.Trilochanaben had executed a Will appointing the Caveators Executors and have bequeathed her right, title and interest in the property that would inherited by her from the estate of the said deceased Jaswantlal Jolia, these Caveators ha caveatable interest. It is submitted that the probate Petition in respect of the Will Mrs.Trilochanaben has been already filed by the Caveators and is pending in this Court. It is submitted that the probate Petition in respect of the Will Mrs.Trilochanaben has been already filed by the Caveators and is pending in this Court. It submitted that if the Petition filed by Mrs.Panna Surendra Mehta is dismisse Mrs.Trilochanaben would inherit the property of the said deceased and accordingly on the ba of the Will left behind by Mrs.Trilochanaben, the Caveators would inherit the property and th have caveatable interest. 14. In my view, the Caveators have no caveatable interest to maintain this Caveat in so far the Petition for letters of administration in respect of the Will of Jaswantlal Jolia is concerne Rights of the Caveators is contingent upon the situation that the Petition for letters administration in respect of the Will of Jaswantlal Jolia is dismissed and the property of the s deceased would stand inherited in Mrs.Trilochanaben who is alleged to have bequeathed h property share in the property of Mr.Jaswantlal Jolia which she would have inherited fro Jaswantlal Jolia would go to the Caveators. 15. In my view, Mr.Vora learned Counsel appearing on behalf of the Petitioner is right in submission that these Caveators are neither the legal heirs nor next of kith and kin of Jaswan Jolia of the said deceased or Mrs.Trilochanaben and thus, are not entitled to maintain t Caveat. I therefore, pass the following order: ORDER Notice of motion is made absolute. Caveats dated 16.1.2013 filed by the Caveator Jaswan Natwarlal Jolia and Jaisukh Krishnalal Shah are dismissed. No order as to costs.