Allowed

Mr. Boman Rustom Irani v. Mr. Tehmton Rustom Irani and Anr.

Bombay HC7 Aug 2009NMT/78/2009

Case brief

AI extract

What is this about?

The High Court considered a motion to dismiss a caveat filed by the Second Defendant in a testamentary suit. Ruling that the Second Defendant, a grandson, had no interest under the intestate succession rules applicable to the deceased testatrix, the Court dismissed the caveat without engaging with an irrelevant undertaking from a prior dismissed matter. The motion was made absolute.

What did the court decide?

The Notice of Motion was made absolute, resulting in the dismissal of the caveat filed by the Second Defendant.

Mr. Boman Rustom Irani Vs Mr. Tehmton Rustom Irani… — Succession and Inheritance | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J.

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NOTICE OF MOTION NO.78 OF 2009 IN TESTAMENTARY SUIT NO.58 OF 2005 IN TESTAMENTARY PETITION NO.87 OF 2003

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Mr. Boman Rustom Irani. ...Petitioner.

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Vs.

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Mr. Tehmton Rustom Irani &Anr.

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...Respondents.

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Mr.Y. V. Divekar with Ms. G.Bhagwat i/b. Divekar & Co. for the Plaintiff/Petitioner.

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Mr. H.L. D’souza i/b. Yatin R. Shah for Defendant No.1. Mr.Dipen T. Furia for Defendant No.2.

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CORAM : DR.D.Y.CHANDRACHUD, J.

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August 7, 2009 . P.C.

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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 27^th 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.

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During the life time of the First Defendant, admittedly the

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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 predeceased 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.

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Reliance is, however, sought to be placed on an undertaking tendered on 25^th October 2005 at the ad-interim stage of a Notice of Motion (Notice of Motion 143 of 2005) in Testamentary Suit 58 of

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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 16^th 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.

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The Notice of Motion is made absolute in terms of prayer clause (a).

Mr. Boman Rustom Irani v. Mr. Tehmton Rustom Irani and Anr.

Case brief

What is this about?

What did the court decide?

Mr. Boman Rustom Irani v. Mr. Tehmton Rustom Irani and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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