1 APP298/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION APPEAL NO.298 OF 2010 IN NOTICE OF MOTION NO.101 OF 2009 IN SUIT NO.39 OF 2009 IN TESTAMENTARY PETITION NO.972 OF 2006 Jyoti Vijay Bhasin ...Appellant v/s Mr Anil B. Rawal ...Respondents Ms Lata Desai with Dr Pallavi Divekar for Appellant. Mr D.R. Mishra for Respondents. CORAM : D.K. DESHMUKH AND R.G. KETKAR JJ. DATE : 6TH JUNE 2011. 2 APP298/10 P.C. :- 1] Admit. Heard finally by consent of parties. 2] Admittedly, the appellant has filed a petition for probate of the will which, according to the appellant, has been left behind by one Krishnadevi G. Rawal. One Bimla B. Rawal, who is respondent in this appeal, filed a caveat. Admitted position is that the appellant, who claims that the deceased has left behind the will, claims to be the adopted daughter of the deceased. She is also related to the deceased inasmuch she is daughter of the brother of the deceased s husband. Bimla, who has filed the caveat, is admittedly widow of the brother of the husband of the deceased. The appellant therefore took out notice of motion No.101 of 2009 for removal of the caveat filed by Bimla on the ground that even if it is assumed that there is no will and even if the claim of the appellant that she is adopted daughter of the deceased is ignored, 3 APP298/10 the respondent Bimla could not be the heir of the husband of the deceased and therefore does not have caveatable interest. The notice of motion was opposed by Bimla. The learned Single Judge by order dated 2nd March 2010 has rejected that motion. Hence the present appeal. 3] We have heard the learned counsel for both the sides. The admitted position on record is that though the appellant claims to be the adopted daughter of the deceased, she in fact admittedly is the daughter of the brother of the husband of the deceased. Bimla, who has filed the caveat, is widow of the brother of the husband of the deceased. If the adoption is ignored and the fact that there is a will is also ignored, Bimla would not be the heir. Admittedly, the deceased belonged to Hindu religion, therefore her succession will be governed by the provisions of the Hindu Succession Act. Section 15 of the said Act lays down that the property of a female Hindu dying intestate shall devolve firstly upon the sons and daughters and the husband. In the 4 APP298/10 present case, admittedly, there are no natural sons and daughters, the appellant claims to be the adopted daughter as also there was no husband left behind by the deceased and secondly, upon the heirs of the husband. Therefore, an enquiry will have to be made whether Bimla can be treated as heir of the husband for the purpose of maintaining the caveat. So far as determination of that question is concerned, it is section 8 of the Act which applies, which lays down that the property of a male Hindu dying intestate shall devolve firstly upon the heirs, being the relatives specified in class I of the Schedule and secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule. In the present case, it is an admitted position that the husband of the deceased did not leave behind any heir of class I if the fact that the appellant is an adopted daughter is ignored. Therefore, we have to go to class II of the Schedule. Perusal of class II of the Schedule shows that entry IV of class II provides that brother s daughter is one of the 5 APP298/10 heirs. If the claim of the appellant that she is adopted daughter of the deceased is ignored, then she is biological daughter of the brother of the husband of the deceased. Therefore, she will be a relative of the husband of the deceased falling in class II, entry IV. So far as Bimla is concerned, she is the widow of the brother of the husband of the deceased and therefore, she will fall in class II entry VI. Section 9 of the said Act lays down that so far as the relatives falling in class II are concerned, they shall be preferred to those in entry II and those in entry II shall be preferred to those in the entry III and so on in succession. Therefore, if there is a relative present who falls in entry IV of class II of the Schedule, then all relatives falling in the succeeding entries will have to be ignored and cannot be treated as heirs and therefore, it is clear that so far as Bimla is concerned, she cannot be treated as heir of the husband of the deceased and therefore will not have any caveatable interest. In our opinion, therefore, the learned Single Judge could not have rejected the 6 APP298/10 motion. The order impugned in the appeal is therefore set aside. Notice of motion No.101 of 2009 is granted in terms of prayer clause (a). Appeal is disposed off. Parties to act on the copy of this order duly authenticated by the Associate / Private Secretary of this Court. Certified copy expedited. ( JUSTICE D.K. DESHMUKH ) ( JUSTICE R.G. KETKAR )