1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION NOTICE OF MOTION NO.23 OF 2009 IN TEST. PETITION LOD.NO.170 OF 2009 Keki Khodadad Irani .. Petitioner Versus Sayed Mohammed Sidique H. Zaidi @ Sayed Zaigham Haider Zaidi .. Caveator Mr.Chirag Balsara with Mr.Mody i/b.Rustumji & Ginwala for plaintiff Mr.Ali Zaidy i/b. M/s.Zaidy & Co. for for caveator CORAM : S.C.DHARMADHIKARI, J. DATE : 27th February 2009. P.C. . In the light of the caveat dated 17th November 2008, the petition should be converted into a suit. Registry to take appropriate steps and number the proceedings as suit. 2. This is a Notice of Motion by the 2 petitioner - plaintiff praying for not just dismissal of the caveat and to grant to him a Letters of Administration to Administer the Estate of the Deceased but praying for certain Interim Reliefs which are more particularly set out in prayer clause (c) to (m) of the notice of motion. 3. It is contended by Mr.Balsara that the plaintiff is brother of the deceased. Petition is filed for grant of letters of Administration who died Intestate on or about 23rd August 2003. Mr.Balsara urges that the caveat is filed by the caveator on the basis that he and the deceased were married as per Islamic rites. The marriage was solemnised on 6th December 1995. However, according to Mr.Balsara the documents which are relied upon are completely silent with regard to the marital status of the deceased. Mr.Balsara has invited my attention to the Death Certificate and has shown me the column wherein the caveator 3 is shown as Informant and his relationship with the deceased is shown as that of Nephew. Mr.Balsara then contended that the plaintiff has been able to produce the marriage certificate which is bearing a date (13th March 2008) whereas the copy of the same document is produced by the caveator and it is undated. Mr.Balsara urges that the age of the deceased has been set out as 45 years whereas that of the caveator is mentioned as 35 years. The marriage has been solemnised at Meherali Mansion, Byculla, Mumbai allegedly on 6th December 1995. However, the original document has an endorsement in English with regard to the date of birth of the Bride and Bridegroom. My attention is invited to the declaration and the entry in the passport, in all of which the name of the deceased is stated to be Zarina Kodadad Irani. 4. Mr.Balsara has invited my attention to the nomination form dated 1st March 2006 and the 4 signature of the caveator/ member therein. He has also invited my attention to the annexures to the affidavit in reply, including certain photographs but he states that at no place is it mentioned that the deceased was married, much less the caveator being her husband. Thus, the documents which are relied upon by the caveator would indicate the case of his marriage with the deceased is false and, therefore, this is a fit case for dismissal of the caveat. The Caveator has no caveatble interest in the Estate of the deceased. 5. Alternatively and without prejudice, it is contended by Mr.Balsara that considering the serious allegations made by the plaintiff against the caveator and the documents prima facie creating doubt about the version of the caveator being married to the deceased, this is a fit case where interim orders should be passed so as to preserve and protect the subject matter of the 5 litigation. 6. Prima facie case is made out, balance of convenience is also in favour of the plaintiff and irreparable loss and injury would be caused if the interim orders are not granted, is his further submission. 7. On the other hand, learned Advocate appearing for defendant has not seriously disputed that some interim orders and protection can be granted by the Court. However, he submits that the marriage with the deceased is a genuine one. The marriage was solemnised on 6th December 1995. The deceased retained her name as Zarina Irani. The marriage was witnessed by witnesses whose affidavits are filed. There are persons who have attended the marriage and they have also filed their affidavits. In such circumstances, at this stage liberty should be given to caveator to substantiate his pleas and the caveat need not 6 be thrown out. 8. After the matter was argued for some time and I have gone through the replies and rejoinder, in my view, it will not be proper to conclude at this stage that the caveator has no caveatable interest. It cannot be held merely on the basis of the rival contentions that the marriage is either substantiated or otherwise. As has been rightly pointed out, an opportunity has to be given to substantiate the case set out in the caveat and the affidavit in support. 9. However, there are valuable properties. The estate has to be protected and preserved. The estate includes monies in banks and immovable properties. The apprehension of the caveator is that he would be dispossessed from the immovable properties. The above apprehension can be taken care of by directing that until the suit is heard and disposed of, the banks impleaded as 7 respondent Nos. 1 to 4 shall continue to maintain status quo as prevailing on 16th January 2009 in respect of the deposits and accounts with them. Neither the plaintiff - petitioner nor the caveator defendant shall be allowed to operate these bank accounts or the lockers in these banks, no withdrawals or disbursals from these accounts shall be permitted by the respective banks. The banks shall file a detailed statement of the accounts with them so also the lockers that are maintained with the respective banks or their branches. This shall be done by the banks within 12 (twelve) weeks from the date of receipt of a copy of this order. 10. Till the hearing and final disposal of the suit, the caveator defendant shall not part with possession nor induct anybody in the immovable properties in his possession even as a licensee. He shall not create any third party rights or encumber and alienate the immovable 8 properties till the hearing and final disposal of the suit. However, this order will not prevent the caveator - defendant from remaining in possession of the immovable properties. It is stated that immovable properties are flats at Mumbai, including the one at Versova and a Farm House at Talasari, Dist.Thane. The deceased also has a flat at Nashik which is stated to be in possession of son in law of plaintiff - petitioner Mr.Adil Kayani, who is present in Court. He makes a statement that he will not dispose of, encumber, alienate, transfer or part with possession of the subject flat which is located at Trimbak Road, Nashik till the hearing and final disposal of the suit. 11. Notice of motion is allowed in the above terms. All contentions of both sides on merits are expressly kept open for being agitated and raised during the trial of the suit. At the request of parties, hearing of the suit is 9 expedited. All concerned to act on authenticated copy of this order. (S.C.Dharmadhikari, J)