1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. NOTICE OF MOTION NO.78 OF 2009 IN TESTAMENTARY SUIT NO.58 OF 2005 IN TESTAMENTARY PETITION NO.87 OF 2003 Mr. Boman Rustom Irani. ...Petitioner. Vs. Mr. Tehmton Rustom Irani &Anr. ...Respondents. .... Mr.Y. V. Divekar with Ms. G.Bhagwat i/b. Divekar & Co. for the Plaintiff/Petitioner. Mr. H.L. D’souza i/b. Yatin R. Shah for Defendant No.1. Mr.Dipen T. Furia for Defendant No.2. ..... CORAM : DR.D.Y.CHANDRACHUD, J. August 7, 2009. P.C. The Motion seeks the dismissal of a Caveat filed by the Second Defendant in a testamentary proceeding. A petition has been filed before this Court for probate of the will of Porochy Rustom Irani. The testatrix died on 27th October 2002. The Plaintiff and the Second Defendant are both sons of the deceased. The Second Defendant has filed a Caveat of which a dismissal is sought in these proceedings. The Second defendant is the son of the First Defemndant. 2 2. During the life time of the First Defendant, admittedly the Second Defendant would have no interest in the estate of the testatrix. Section 51(1)(b) of the Indian Succession Act, 1925 provides for the manner in which the property of a Parsi who dies intestate shall be divided. Where a Parsi dies leaving behind a widow, widower or children, the mode of distribution is provided for in clause (a). Admittedly, the husband of the testatrix has pre- deceased her. Consequently, clause (a) will not apply. However, clause (b) would apply. Clause (b) of sub-Section (1) of Section 51 provides that where a Parsi dies leaving children, but no widow or widower, the property would devolve among the children in equal share. In these circumstances, obviously the Second Defendant who is a grandson of the testatrix and the son of the First Defendant has no caveatable interest. The First Defendant, as already noted above, has already filed a Caveat. 3. Reliance is, however, sought to be placed on an undertaking tendered on 25th October 2005 at the ad-interim stage of a Notice of Motion (Notice of Motion 143 of 2005) in Testamentary Suit 58 of 3 2005. The attention of the Court has, however, been drawn to the fact that in pursuance of the ad-interim order, accounts were filed until September 2006 and the Notice of Motion itself was dismissed in default on 16th November 2006. Be that as it may, on the clear position in law, the Second Defendant does not have a caveatable interest. The Motion would accordingly have to be made absolute. 4. The Notice of Motion is made absolute in terms of prayer clause (a). ......