1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. APPEAL NO.166 OF 2004 IN NOTICE OF MOTION NO.1650 OF 2002 IN TESTAMENTARY SUIT NO.35 OF 2002 IN TESTAMENTARY PETITION NO.889 OF 2001 V.Srinivasan, Indian Inhabitant, residing at Block No.1, 548-D, Mani Villa, Dr.Ambedkar Road, Matunga, Mumbai-400 019. .. Appellant v/s. Venkatapathy Krishna Murthy .. Respondent of Mumbai, adult, Hindu, Indian Inhabitant, residing at 736-A, Ratan Jyoti, 3rd floor, Road No.4, Parsi Colony Road No.4, Mumbai-400 014. The sole legatee named in the Will of Deceased abovenamed. Mr.K. R.Choudhari for the appellant. Mr.Naushad Engineer with Mr.Sunil Gangan i/by M/s.RMG Law Associates for the respondent. CORAM : R.M. LODHA & ANOOP V.MOHTA, JJ. DATED : 30TH JANUARY, 2006. ORAL JUDGMENT (Per R.M.Lodha, J.) 2 Heard Mr.K. R.Choudhari, the learned counsel for the appellant and Mr.Naushad Engineer, the learned counsel for the respondent. We perused the impugned judgment dated 30th January, 2004. 2. One Vankatapathy Ramnath died at Bombay on or about 20th June, 2001. He is said to have executed the last will and testament on 28th June, 2000. His brother Venkatapathy Krishna Murti (respondent herein) filed a petition for letters of administration with the will annexed before this court somewhere in the month of November, 2001. According to the averments made in the petition, the wife of the testator predeceased him and he had no issues. The testator had two brothers. One Venkatapathy Krishna Murti (respondent herein) and the other V.V.Raman who predeceased the testator leaving behind one son (V.Srinivasan- the appellant) and three daughters (Vanaja Rajagopalan, Bhanumathi Mani and Vijaya Gopalakrishnan). The testator had two sisters-Kunjamal Ramnathan Iyer (now deceased) and Subhalakshmi Subramanian. The deceased Kunjamal Ramnathan Iyer is survived by her son, daughters, grandsons and grand daughter. The citation to the legal heirs and next of kin of the deceased were issued by registered A.D. and all of them were served in the last week of December, 2001. In so far as the present appellant is concerned, he was served with the citation on 27.12.2001. The caveat was filed by him on 26th April, 2002 opposing the grant of letters of administration and the affidavit in support of the caveat was filed by him on 30th April, 2002. 3. The present respondent took out the notice of motion in the month of 3 June, 2002 praying therein that the caveat filed by the present appellant be dismissed and the court may be pleased to process the petition for letters of administration as if it was uncontested and grant letters of administration of the last will and testament of Venkatapathy Ramnath. 4. The notice of motion was opposed by the present appellant on the diverse grounds. 5. The learned motion Judge heard the advocates for the parties and by the order dated 30th January, 2004 granted the notice of motion in terms of prayers (a) and (b). In other words, the learned motion Judge dismissed the caveat filed by the present appellant and since there was no contest, granted the letters of administration. Aggrieved thereby, the present appeal has been preferred. 6. It is not in dispute that the deceased was governed by the Hindu Succession Act, 1956. He did not leave behind class I heirs. The present respondent as well as the caveator (appellant herein) are class II heirs. While the respondent herein being brother falls in entry 2 of Class II heirs; the caveator-present appellant is covered by entry 4 of class II heirs. As per section 9 of the Hindu Succession Act, 1956, the entry 2 in class II heirs shall be preferred to those in entry 3 and there being no heir covered by entry 3, the entry 2 in class II heirs shall be preferred to those in entry 4, the learned Motion Judge held that the caveator has no interest in the estate of the deceased. The learned motion Judge also held that the caveator was claiming an interest adversely to the testator in respect of the 4 deceased estate, such dispute cannot be adjudicated by the probate court and on that ground also the caveat is liable to be dismissed. As regards the belated filing of the caveat, the learned Judge did not decide the said issue. 7. Mr.K.R.Choudhary, the learned advocate for the appellant submitted that the will made by the testator was in respect of the property which even did not belong to the testator. He would submit that this was clear from the petition filed by the respondent seeking letters of administration to the will annexed. 8. The legal position is no more res integra that the caveator cannot claim adversely to the testator and seek resolution of title dispute by the probate court. That the caveator is challenging the title of the testator in respect of his estate of which the will has been executed by him disentitles him from contesting the petition for letters of administration and thereby maintaining the caveat. 9. Besides that, admittedly the deceased was not survived by class I heirs and both the present respondent as well as caveator-appellant are class II heirs. The respondent is class II heir covered by entry 2 while the present appellant belongs to entry 4. In this view of the matter also the caveator cannot be said to have any interest in the estate of the deceased and on that ground also the caveator cannot be held to have any caveatable interest. 10. Even otherwise, the caveat was liable to be dismissed on the ground 5 of limitation. Rule 401 of the High Court Rules, (O. S.) provides that the caveat shall be filed within 14 days of service of the citation. It is not in dispute that the citation was served on the caveator-appellant on 27.12.2001. The objection of the appellant is that in the citation in place of his name, the name of other heir was written and he waited for the fresh citation being served on him. We are afraid, the reason put forth by the appellant does not explain the delay in filing the caveat. The caveat ought to have been filed by the appellant in time. He could have raised the objection that citation did not bear his name but name of some other heir. For all these reasons, no interference is called for in the order of the learned Motion Judge dismissing the caveat and granting the letters of administration of the last will and testament of Venkatapathy Ramnath as prayed in the petition. 11. Appeal has no merit and is dismissed with no order as to costs. (R.M.LODHA, J.) (ANOOP V. MOHTA, J.)