Allowed

Marzban Dadi Naegamvala Son of Didi Naegamvala v. Christine Rustom Pastakia and 2 Ors.

Bombay HC22 Aug 2016NMA/244/2019

Case brief

AI extract

What is this about?

High Court Bombay allowed an appeal against an order dismissing a caveat petition. The court set aside the lower court's decision holding the appellant had no caveatable interest, granting a fresh opportunity to submit the appellant's version of the family tree to establish legal heirship.

What did the court decide?

Impugned order dated 25 July 2016 set aside; matter remanded to Single Judge for fresh consideration.

Marzban Dadi Naegamvala Son of Didi Naegamvala Vs… — Succession and Inheritance | Bombay HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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TESTAMENTARY AND INTESTATE JURISDICTION

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APPEAL (LODGING) NO. 290 OF 2016 IN NOTICE OF MOTION NO. 160 OF 2016 AND NOTICE OF MOTION NO. 143 OF 2015 IN TESTAMENTARY SUIT NO. 135 OF 2015 IN TESTAMENTARY PETITION NO. 493 OF 2015

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WITH

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NOTICE OF MOTION (L) NO. 2395 OF 2016

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Marzban Dadi Naegamvala .. Appellant/Caveator V/s. Christine Rustom Pastakia and ors. .. Respondents.

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Mr. Q.M. Ashfaq for the Appellant/Caveator.

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Mr. Zubin Behramkamdin a/w. Ms Vidya Nair i/b M/w. Wadia Ghandy and Co. for the Respondents.

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CORAM: DR. MANJULA CHELLUR, C.J. AND M.S.SONAK, J.

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DATE : 22 AUGUST 2016

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P.C.

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1] Heard learned counsel for the parties. With their consent and at their request, the appeal is disposed of finally.

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2] This appeal is directed against the order dated 25 July 2016, by which, the learned Single Judge has made absolute in terms of

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prayer clause (a) the Notice of Motion No. 143 of 2015 taken out by the respondents-plaintiffs and thereby discharged the appellant's caveat, holding that the appellant has no caveatable interest in the matter.

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3] Mr. Q.M. Ashfaq, learned counsel for the appellant, submits that opportunity was denied to the appellant to place on record his version of the family tree and on the said basis to satisfy the Court that the appellant indeed has caveatable interest to the estate of the testator. He submitted that similar order was made by the learned Single Judge on 10 June 2016, when neither the appellant nor his advocate could remain present before the Court. The reasons for absence on 10 June 2016 were set out in affidavit dated 9 July 2016 in support of Notice of Motion No. 160 of 2016 seeking recall of the order dated 10 June 2016. Such reasons were accepted by the learned Single Judge and the order dated 10 June 2016 was recalled. However, the counsel for the appellant was required to make submissions on Notice of Motion No. 143 of 2015, the same afternoon and the impugned order was made holding that the appellant lacks caveatable interest to the estate testator.

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4] Mr. Ashfaq, learned counsel for the appellant, has submitted that there is no dispute that the appellant is one of the legal heirs of testator Soona Burjor Pastakia. Further, it is also case of Mr. Ashfaq that the family tree presented by the respondents is not

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accurate. In these circumstances, Mr. Ashfaq, learned counsel for the appellant, submitted that the appellant deserves further opportunity to place on record the entire material, including, the appellant's version of the family tree, so as to establish caveatable interest to the estate of the testator.

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5] Mr. Zubin Behramkamdin, learned counsel for the respondents, submitted that the appellant had ample opportunity of placing on record his version of the family tree, which opportunity the appellant failed to avail. Mr. Behramkamdin submitted that there are atleast four heirs, who fall within Class I of Schedule II to the Indian Succession Act, 1925 (said Act) and their existence, will naturally exclude the appellant from any claim to the estate of the testator. For these reasons, Mr. Behramkamdin submitted that there is no warrant to interfere with the impugned order holding that the appellant has no caveatable interest in the matter.

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6] Having considered the rival submissions and perused the record, we are satisfied that in the facts of the present case further opportunity is required to be granted to the appellant to place on record his version of the family tree and to satisfy the learned Single Judge that the appellant has caveatable interest to the estate of testator. The reasoning in the impugned order proceeds on the basis of family tree placed on record by the respondent. If the position referred to in the family tree is accepted as correct,

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then possibly, there is no case made out to fault with the reasoning in the impugned order. If however, as contended by learned counsel for the appellant, the family tree as presented by the respondents does not represent the correct position, the issue of caveatable interest may have to be revisited.

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7] Taking into consideration the stakes involved, it would be appropriate if yet another opportunity is granted to the appellant to place on record his version of the family tree, so that there is no further complaint of lack of reasonable opportunity. We record the statement of Mr.Q.M. Ashfaq, learned counsel for the appellant/caveator, that the appellant will file his version of the family tree as also other material in support of the appellant's claim to caveatable interest in the estate within a period of two weeks from today. The respondents will also be at liberty to counter the position presented by the appellant within the time limits which may be specified by the learned Single Judge.

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8] In the aforesaid circumstances, without expressing any opinion on the merits of the matter, we set aside the impugned order dated 25 July 2016 and remand the matter to the learned Single Judge for fresh consideration, in accordance with law and on its own merits.

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9] The appeal is accordingly, allowed in the aforesaid terms.

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10] In view of disposal of main appeal, Notice of Motion (L) No. 2395 of 2016 do not survive and the same is disposed of accordingly.

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CHIEF JUSTICE

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Marzban Dadi Naegamvala Son of Didi Naegamvala v. Christine Rustom Pastakia and 2 Ors.

Case brief

What is this about?

What did the court decide?

Marzban Dadi Naegamvala Son of Didi Naegamvala v. Christine Rustom Pastakia and 2 Ors.

Case brief

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What did the court decide?

What the court decided

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Issues for consideration

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