: 1 : nmt-96-11=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION NOTICE OF MOTION NO. 96 OF 2011 IN MISC. PETITION (L) NO. 456 OF 2011 IN PETITION NO. 139 OF 2009 Purshottam Vasudev Nagpal .. Plaintiff / Petitioner v/s. Rani Lalchand Kalro .. Respondent ......... Mr. A.S. Oaver i/b Thakore Jariwala Associates for the plaintiff / petitioner Ms. Firdaus Moosa for respondent no.1 Mr. Shyam Mehta i/b Federal & Rashmikant for respondent no.2 Ms. Ferzana Behramkamdin i/b FZB & Associates for respondent no.3 ......... CORAM : R.Y.GANOO, J DATE : 18th AUGUST, 2011. P.C. : 1. By consent of advocates on both sides, this motion was taken up for hearing. : 2 : nmt-96-11=.sxw 2. This motion is taken out by the petitioner after filing Miscellaneous Petition (L) No.456 of 2011. It is the case of the petitioner that he was the heir of Sattabai Lakhmichand Chhabria and that he has not been served with citation and that is how, he was required to file Miscellaneous Petition and on the account of filing of such Miscellaneous Petition, he has taken out the present notice of motion. In order to find out whether this motion can be entertained by the Court, it would be necessary for this Court to ascertain whether the present petitioner could be termed as heirs of Sattabai L. Chhabria and whether he could legitimately accept to have citation to serve upon upon him. 3. The Court was informed by the learned advocate for the petitioner that Smt. Sattabai was propagating Hindu religion and, therefore, it became necessary for the Court to ascertain on the basis of the provisions of the Hindu Succession Act, as to whether the petitioner can be termed as heir. The Court was also informed that Sattabai died on 7th May, 2008 leaving behind her her husband. It is admitted by the parties, who are : 3 : nmt-96-11=.sxw represented before this Court that Sattabai and her husband Lakhmichand did not have any issue. In view of the provisions of Section 15 of the Hindu Succession Act and after appreciating the persons, who were related to said Sattabai and Lakhmichand, as set out in Exh.’D’ (page 17, 18, 19 and 20 to the notice of motion), it is clear that the present petitioner cannot be termed as a heir of Sattabai. This is because, the husband of Sattabai left behind him his brother Lalchand. Husband of Sattabai had one brother by name Lalchand T. Chhabria and this Lalchand had pre-deceased husband of Sattabai and, therefore, the persons in clause IV of clause 2 of the schedule to the Hindu Succession Act, can be termed as heirs of Sattabai and these persons are available as set out in page 18 of the affidavit in support of the notice of motion. A reading of the provisions of Section 15 and Schedule of the Hindu Succession Act and the names of persons, described on page nos. 17,18, 19 and 20 of the notice of motion, it is abundantly clear that the present petitioner cannot be termed as heir of Sattabai. 4. If this is the position, then, the petitioner could not style : 4 : nmt-96-11=.sxw himself as heir of Sattabai. The petitioner has otherwise no caveatable interest. In view of the above, prima-facie, the Miscellaneous Petition filed by the petitioner is not maintainable. As such, the petitioner is not entitled to interim reliefs asked for in this notice of motion and, therefore, the notice of motion is required to be disposed of. Hence, following order is passed in the notice of motion. ORDER (i) Motion is dismissed with no order as to costs. (ii)Learned advocate for the petitioner seeks time to take instructions as to whether petitioner would like to prosecute the Miscellaneous Petition. (iii) Adjourned to 25th August, 2011 for withdrawal. (R.Y.GANOO, J.)