IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION. NOTICE OF MOTION NO. 78 OF 2008 IN TESTAMENTARY SUIT NO. 22 OF 2008 IN TESTAMENTARY PETITION NO. 490 OF 2007. Kilwantsingh Budhsingh Anand..... ...... .... Plaintiff V/s Mrs.Manmit Kaur Gandhi & Anr.... ..... ....Defendants. Mr.Shailesh Shah with Mr.Yashodhan Divekar with Ms.Gargi Bhagwat i/by M/s.Divekar & Co., Advocates for plaintiff. Mr.N.K.Mudnaney, Adv. For the defendants. CORAM: A.P. DESHPANDE, J. 8th July, 2009. PC: Heard learned counsel for the respective parties touching the motion. This motion is taken out by the petitioner/plaintiff for discharge of caveat filed by the defendants-caveators. The petitioner/plaintiff is the son of one Budhsingh Anand. Budhsingh Anand expired on 13.10.2005. The plaintiff’s father had left behind a will dated 28.10.97, for obtaining letters of administration of which property present proceedings are initiated. The plaintiff has placed on record a genealogical tree indicating the relationship. One Mithasingh Anand had four sons two of whom are by name Maliksingh and Budhsing whereas the other two sons are not concerned with the dispute. Maliksingh Anand had married Virawali and from the said marriage a son by name Harbajansingh was born. 1 Maliksingh expired sometime in the year 1960 and after his death Virawali married Maliksingh brother Budhsingh Anand whose will is the subject matter of the present suit. The petition has been filed by Budhsingh’s son Kilwantsingh Anand for obtaining letters of administration wherein the caveators who claim to be the descendants of Harbajansingh have filed the caveat. Harbajansingh was married to one Baljit Kaur. Harbajansingh had divorced Baljit Kaur and at the time of divorce Baljit Kaur had two daughters by name Manmit Kaur and Satbir Kaur and said two daughters of Harbajansingh and Baljit Kaur are the caveators. After her divorce with Harbajansingh, Baljit Kaur married one Taranjitsingh Sahani and settled in London along with her family. It is the case of the plaintiff that after marriage of Baljit Kaur with Taranjitsingh, Taranjitsingh adopted daughters of Baljit Kaur viz. Present caveators and thus on their adoption, caveators ceased to have any claim in relation to the property of the natural father Harbajansingh. With a view to bring home the fact of the adoption of the caveators by Taranjitsingh, learned counsel for the petitioner has placed on record a judgment delivered in Misc. Petition No.75/99 in Petition No.298/90. My attention is invited to paras 16 to 19 of the said judgment. Learned Judge has framed the question in para 16 which required consideration. The Court has observed thus: The question that needs to be gone into is whether the petitioners have been adopted by adoption order passed by United Kingdom authorities having accepted the same and being adopted as children of Taranjitsingh whether it is open to the petitioner to contend that the said adoption is not valid in India as required under the Hindu Adoption and Maintenance Act and whether they have right to claim interest in the natural father’s estate in India. The petitioners referred to in para 16 are the present caveators. The learned Judge concluded that the petitioners were adopted by Taranjitsingh and the said 2 adoption is in conformity with laws in force in United Kingdom. Ultimately it is found that the adopted children are absorbed in the family of their adoptive father and continued to be part of that family till date as the adoption is not revoked and in that circumstance it is held that the caveators cannot make any claim to the property left behind by Harbajansingh Anand. The proceedings in Misc. Petition No.75/99 are in relation to a petition for revocation of letters of administration granted in favour of Virawali in respect of will of Harbajansingh which was sought to be revoked by the present caveators. The judgment referred to in Misc. Petition No.75/99 was challenged by filing an appeal before the Division Bench of this Court which came to be dismissed and thereafter by filing SLP in the Supreme Court. The SLP was dismissed and hence said judgment has attained finality. 2. Per contra, it is the case of the caveators that the caveators would have an interest in the estate left behind by Virawali, she being their grand mother and Harbajansingh having predeceased Virawali. The claim is founded and based on the general rules of Succession in case of Female Hindus and to be more precise, under section 15(2)(b). As according to the caveator, Virawali had inherited some property from her first husband Maliksingh Anand and hence the said property would devolve upon son or daughter (including children of any predeceased son). The Caveators are also placing reliance on section 283(1)(c) of Indian Succession Act which provides that in all cases the Court may if it thinks proper issue citations calling upon all the persons claiming to have interest in the estate of the deceased to come and see the proceedings before grant of probate or letters of administration. It is thus submitted that even if the interest in the estate is insignificant the person having such a limited interest would also be entitled to maintain a caveat. Having regard to the facts narrated herein 3 above what is relevant to note is that in the present proceedings we are concerned with the will of Budhsingh Anand and not Virawali and hence claim of the caveators is too far fetched being decedents of Virawali. As the petitioner/plaintiff is class I heir along with four other class I heirs they would succeed to the estsate even under an intestate succession hence the caveators could hardly claim any interest in the estate of Budhsingh. The interest in the estate has to be real which would permit the caveator to maintain the caveat against a heir apparent who is also a beneficiary under the will. I am also informed by the learned counsel for the plaintiff that the will executed by Virawali has also been probated. Whereas the learned counsel for the defendant informs that proceedings are already initiated and pending where under revocation of Probate is sought. Be that as it may, I deem it appropriate to discharge the caveat for the reason that the petitioner/plaintiff is the son of deceased and is class I heir who would be entitled to estate of the deceased Budhsingh Anand along with his other brothers and sisters who would also be class I heirs even under the law governing intestate succession. Caveators’ have no caveatable interest in the estate left behind by Budhsingh. As I have held that the caveators have no real interest in the estate left behind by Budhsingh I find that caveat is unsustainable for want of any caveatable interest. The other reason why the caveat need to be discharged is that the caveators have gone in adoption as daughters of one Taranjitsingh on his marriage with Baljit Kaur the mother of caveators and thus on adoption of the caveators by the adoptive father they cease to have any relation with the estate of the family of their natural father i.e. Harbajansingh. For coming to this conclusion I rely upon the judgment referred to herein above passed in Misc.Petition No.75/99 as the said judgment has assumed finality. In the result notice of motion is allowed. Caveat stands 4 discharged. At this stage learned counsel for the defendants-caveators prays for stay of this order for a period of four weeks, in the absence of which letters of administration would be issued to the petitioner. I find the request to be just and proper and hence stay the effect, operation and execution of this order for a period of four weeks. 8.7.09 5