Allowed

Nasim Sultana Lakdawala v. Barbara Schulte (Caveator) and Christina Harrington @ Christina Pest Moos (Deceased)

Bombay HC5 Mar 2024IA/1128/2023

Case brief

AI extract

What is this about?

High Court of Bombay allowed an interim application to dismiss a caveat. The court held that under Section 38 of the Indian Succession Act, 1925, a daughter-in-law of the deceased has no caveatable interest as rightful heirs are the grandchildren in case of intestacy with no surviving children.

What did the court decide?

The application was allowed and the caveat was dismissed.

Nasim Sultana Lakdawala Vs Barbara Schulte… — Succession and Inheritance | Bombay HC (2024)

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10_IA_1128_23.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION INTERIM APPLICATION NO. 1128 OF 2023

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CAVEAT (LODGING) NO. 355 OF 2019 IN TESTAMENTARY SUIT NO. 1 OF 2024

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TESTAMENTARY PETITION NO. 2892 OF 2019

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Nasim Sultana Lakdawala … Applicant/Petitioner

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vs.

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Barbara Schulte … Defendant/Caveator

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Mr. Pradeep J. Thorat a/w. Ms. Aditi Naikare for applicant/petitioner.

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CORAM : MANISH PITALE, J. DATE : 05^th MARCH, 2024

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P.C. :

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. Heard learned counsel for the applicant/petitioner. This application is filed in the petition for grant of letters of administration of the properties lying in credit of the deceased.

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The deceased is the grandmother of the petitioner. The petitioner is an Indian Christian and in the petition, the petitioner has given details of the surviving legal heirs of the deceased. Apart from the petitioner, who is the granddaughter of the deceased, her own brother i.e. the grandson of the deceased, is shown as one of the legal heirs. He has given his consent affidavit in the present petition.

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The petitioner states that the deceased had two sons Carl and Trevor. Carl was the father of the petitioner, who expired on 19.05.1992. Trevor

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PRIYAKAMBLI Digitally signedby PRIYAKAMBLIDate:2024.03.0616:13:56 +0530

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10_IA_1128_23.doc

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also expired and his three children have been cited amongst the surviving legal heirs of the deceased. This Court is informed that the citations have been served upon them and they have not responded.

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The caveatrix in the present petition claims to be the second wife of the said Trevor and on that basis, she claims to be the daughter-in-law of the deceased. This is specifically stated in the affidavit in support of the caveat filed by the caveatrix. The applicant/petitioner relies upon Section 38 of the Indian Succession Act, 1925, to contend that since the deceased has not left behind any surviving children, only the grandchildren can claim to be the surviving legal heirs of the deceased. On this basis, it is submitted that the caveatrix can have no caveatable interest in the present proceeding.

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The caveatrix is represented by an advocate, but there is no appearance on her behalf today. The papers pertaining to the present application were served on the advocate appearing for the caveatrix.

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This Court has heard the learned counsel for the applicant/petitioner. Section 38 of the Indian Succession Act reads as follows:

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“ Section 38: Where intestate has left no child, but grandchild or grandchildren.

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Where the intestate has not left surviving him any child but has left a grandchild or grandchildren and no more remote descendant through a deceased grandchild, the property shall belong to his surviving grandchild if there is one, or shall be equally divided among all his surviving grandchildren.”

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Considering the stand taken by the caveatrix herself in the affidavit in support of the caveat, she claims to be the daughter-in-law of the deceased

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10_IA_1128_23.doc

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and second wife of Trevor i.e. one of the sons of the deceased. Considering the effect of Section 38 of the said Act, quoted hereinabove, it becomes clear that even if the claim of the caveatrix, being daughter-in-law of the deceased, is to be accepted, she cannot have any caveatable interest in the present proceeding.

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In view of the above, the application is allowed and the caveat is dismissed. The department shall now proceed further in accordance with law.

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(MANISH PITALE, J.)

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Priya Kambli

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Nasim Sultana Lakdawala v. Barbara Schulte (Caveator) and Christina Harrington @ Christina Pest Moos (Deceased)

Case brief

What is this about?

What did the court decide?

Nasim Sultana Lakdawala v. Barbara Schulte (Caveator) and Christina Harrington @ Christina Pest Moos (Deceased)

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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