1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE CIVIL JURISDICTION NOTICE OF MOTION NO. 75 OF 2009 IN SUIT NO. 90 OF 2008 IN PETITION NO. 897 OF 2008 Mr. Keshav Anant Karambelkar. ... Deceased. Mr. Ashok Keshav Karambelkar. ... Plaintiff. V/s. Mr. Raghunath Keshav Karambelkar & Anr. ... Defendant. Mr. Mukund Padgaonkar i/b. Shailesh Kumar for the Plaintiff. Mr. Satya Shettigar for Defendant 1 in S.90/08. Mr. Dipen Furia i/b. Niranjan & Co. for D.No.2 in S.90/08. CORAM : S.C. DHARMADHIKARI,J. DATED : 18th NOVEMBER 2009. P.C. :- This is the Plaintiff’s Notice of Motion praying for dismissal of the Caveats. 2. Upon perusal of the affidavit in support and the reply affidavit, it is apparent to me that the Caveat filed by Defendant No.1 Raghunath Keshav Karambelkar cannot be rejected as he is the son of the deceased. The prayer in the Notice of Motion in that behalf is rejected. 2 3. As far as Defendant No.2 Mrs. Mangal S. Thakur is concerned, it is contended by the learned Advocate appearing on behalf of the Plaintiff that the Suit is filed for the purposes of issuance of probate of the last Will and Testament of Keshav Anant Karambelkar. Defendant No.2 is not the daughter of the deceased. The deceased had another brother Sitaram Anant Karmabelkar. Defendant No.2 is the daughter of Sitaram Anant Karambelkar and now married. Inviting my attention to Section 8 of the Hindu Succession Act, 1956 read with the Schedule thereto, it is contended that assuming without admitting that the deceased had expired without leaving a Will even then on intestate succession, Defendant No.2 could not have succeeded to the estate of the deceased. Defendant No.2 is admittedly falling in Class II under the Schedule. If the heirs in Class I are succeeding to the estate to the exclusion of all other heirs, then, Defendant No.2 could not have succeeded to the estate of the of deceased. 4. For these reasons, the caveat filed by her be dismissed. 5. In the affidavit in reply filed to the Notice of Motion by Defendant No.2, it is not denied that the present Petition/Suit is filed for obtaining the probate of the alleged Will and Testament dated 11th October 1999 of Keshav Anant Karambelkar, who died at Mumbai on 7th August 2001. It is also not denied that the deceased had a real brother Sitaram Anant Karambelkar and Defendant No.2 is Sitaram’s daughter. Thus, it is not disputed that she falls in Class II. 3 6. It is in such circumstances, that I unable to accede to the submission of her Counsel that she has a locus-standi to oppose the grant. This aspect is now well settled and it is not necessary to refer to any decision in the field. The Second Defendant’s apprehension appears to be that on the strength of this grant, the issue of title of the property and more particularly, as raised in the affidavit in reply to this Motion would be settled. 7. There is no substance in this grievance as well. Even if the grant is issued, considering the limited jurisdiction of the Testamentary Court, the dispute with regard to the rights in a property situate at Govandi is certainly not going to be decided. Therefore, even if the Motion is allowed and the caveat filed by the Second Defendant is rejected, it is not as if she is remedy less in law. That the issue of title raised by her is always open for being raised and agitated in substantive proceedings. 8. In these circumstances, the following order is made :- “The Notice of Motion is made absolute in terms of prayer clause (b). However, it is clarified that this order and any observations therein shall not prevent the Second Defendant from initiating such proceedings as are permissible in law for proving her right, title and interest in the immovable properties 4 and more particularly, the property mentioned in her affidavit in reply to the Notice of Motion. All contentions of parties in that behalf are kept open. Subject to this clarification, the Motion is allowed in part.” (S.C. DHARMADHIKARI,J.)