1 APP645/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION APPEAL NO.645 OF 2010 IN NOTICE OF MOTION NO.118 OF 2009 IN SUIT NO.39 OF 2009 IN TESTAMENTARY PETITION NO.972 OF 2006 Jyoti Vijay Bhasin ...Appellant v/s Mr Anil B. Rawal ...Respondents Ms Lata Desai with Dr Pallavi Divekar for Appellant. Mr D.R. Mishra for Respondents. CORAM : D.K. DESHMUKH AND R.G. KETKAR JJ. DATE : 6TH JUNE 2011. 2 APP645/10 P.C. :- 1] Admit. Heard finally by consent of parties. 2] Testamentary petition No.972 of 2006 has been filed by the present appellant for probate of the will which according to the appellant, has been left behind by deceased Krishnadevi. The appellant claims to be the adopted daughter of deceased Krishnadevi. The caveat has been filed by Mr Anil Rawal who claims to be heir of the deceased inasmuch as he is heir of the husband of the deceased and he is son of the brother of the husband of the deceased. There is no dispute that if the fact that the appellant claims to be the adopted daughter of the deceased is ignored, she is the daughter of the husband of the deceased. Therefore, she will be in the same category of class II of the Hindu Succession Act 1956 as Mr Anil and therefore Mr Anil would be entitled to maintain a caveat if the claim of the appellant that she is adopted daughter of the 3 APP645/10 deceased is ignored. The appellant, however, took out a motion for removal of the caveat filed by Mr Anil on the ground that the appellant is the adopted daughter of the deceased and therefore, according to the provisions of section 15 of the said Act, she will be the only heir of the deceased and therefore, the caveat filed by Mr Anil is not maintainable. Mr Anil in the affidavit filed in support of the caveat is disputing the validity of the alleged adoption of the appellant by the deceased. The learned Single Judge disposed of the motion by the order impugned in the appeal holding that as the issue of validity of adoption will be decided in the pending proceedings of probate, at this stage, no order can be passed on the motion for removal of the caveat filed by Mr Anil. 3] We have heard learned counsel appearing for both the sides. In our opinion, the question whether the adoption claimed by the appellant is valid or invalid will not be the subject matter of probate petition because the only issue to be decided in the 4 APP645/10 petition will be whether the will propounded by the appellant is a valid will or not. The question whether the appellant s claim that she is adopted daughter of the deceased is valid or invalid arises only because of the motion taken out b the appellant for removal of the caveat of Mr Anil on the ground that she is adopted daughter of the deceased. In our opinion, in order to decide the motion taken out by the appellant, a decision on question whether the claim of the appellant that she is adopted daughter of the deceased is acceptable or not will have to be decided while deciding the motion and decision on that question cannot be postponed to the stage of decision on the petition because as observed above, that question will not be required to be decided for deciding the probate petition or the suit. In our opinion, following order would meet the ends of justice. 4] The order impugned in the appeal is set aside. Notice of motion No.118 of 2009 is remitted back to the learned Single Judge. The learned 5 APP645/10 Single Judge is requested to decide that motion afresh. While deciding that motion, the learned Single Judge shall decide firstly the question whether the appellant s claim that she is adopted daughter of the deceases is valid or invalid. Appeal is disposed off. Parties to act on the copy of this order duly authenticated by the Associate / Private Secretary of this Court. Certified copy expedited. ( JUSTICE D.K. DESHMUKH ) ( JUSTICE R.G. KETKAR )