IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION NOTICE OF MOTION NO.76 OF 2008 IN SUIT NO.51 OF 2008 IN PETITION NO.57 OF 2008 Sunder Newandram Awatramani .. Petitioner/ Plaintiff Vs. Bina Lal Awatramani .. Caveatrix Ms.Anita Castalina a/w Mr.B.G.Saraf for the plaintiff. Mr.Ranjit Shetty a/w Karan Thorat i/by Hariani & Co for the caveatrix. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 17th October 2008. : 17th October 2008. : 17th October 2008. P.C.: . The submissions of the learned counsel appearing for the parties were heard on last Friday. This Notice of Motion has been taken out by the petitioner for dismissing the caveat filed by the caveatrix. The Testamentary Petition is filed for grant of probate inrespect of last Will and testament of one Shantibai Newandram Awatramani (hereinafter referred to as the deceased). The testator died on 08th December 2007. The Will in respect of which probate is sought is dated 20th December 1999. In the Petition for probate it is disclosed that the deceased was survived by the petitioner-son and a married daughter. It is stated that the other son of the deceased Lal died issueless on 2 28th December 1992. A caveat is lodged by Bina who is the widow of the said Lal (deceased son of the testator). 2. The Notice of Motion has been taken out by the petitioner by contending that the caveatrix is not a legal heir of the deceased as per the provisions of Hindu Succession Act, 1956 and therefore, the caveatrix does not have a caveatable interest. 3. The learned counsel appearing for the petitioner invited my attention to section 15 of the said Act of 1956 and submitted that the caveatrix is not entitled to inherit the estate of the deceased testator. It is pointed out that the contention of the caveatrix raised in the affidavit in support of the caveat is that the equity shares were held by the deceased for and on behalf of the Hindu undivided family and as a mother and natural guardian of the minor sons including the deceased husband of the caveatrix. She pointed out that the contention raised is that the husband of the deceased died in the year 1941 and the shares standing in the name of the husband of the deceased were transferred in her name for using the same for the benefit of the joint family. The contention of the petitioner is that the caveatrix is raising a dispute 3 about the title of the deceased to the shares held in her name. 4. The learned counsel appearing for the caveatrix placed reliance on a decision of this Court in the case of Eruch Rustom Irani Vs. Limji Kaikashroo Panday [1992 (1) Bombay Cases Report 340] and submitted that the caveatrix has a caveatable interest. He submitted that the caveat cannot be dismissed as various objections have been raised by the caveatrix in the caveat. He, therefore, submitted that the notice of motion deserves to be dismissed. 5. I have given careful consideration to the submissions. In absence of any Will executed by the deceased, the succession will be governed by section 15 of the said Act of 1956. In the present case clause (a) of sub-section 1 of section 15 will apply which provides that the property of the female Hindu dying intestate shall devolve firstly upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband and secondly upon the heirs of the husband. Section 16 of the said Act of 1956 provides that amongst the heirs specified in sub-section 1 of section 15, those in one entry shall be preferred to those in any succeeding entry, and those included in 4 the same entry shall take simultaneously. Reliance was sought to be placed on clause (b) of sub section 2 of the said Act of 1956. However, the said clause will not help the caveatrix as in the present case a son and a daughter of the deceased are very much living. Therefore, in absence of a Will of the deceased, the caveatrix will not be entitled to inherit any share in the estate of the deceased. 6. The issue whether the shares held in the name of the deceased were her own shares or the shares were held by her for the benefit of the joint Hindu family cannot be decided by the Probate Court as the question of title is beyond the jurisdiction of the Probate Court. In any case, the caveatrix has already filed a civil suit for establishing her rights. 7. Thus, the caveatrix has no caveatable interest and the Notice of Motion must succeed. 8. The Notice of Motion is made absolute in terms of prayer clause (a). 9. It is made clear that no adjudication has been made on the rights claimed by the caveatrix and all the issues raised by the caveatrix are expressly kept open. 5 (A.S.Oka,J)