Allowed

Neelam Ashok Vazir(Petitioner) and Ashok Naraindas Vazir (Deceased) v. Mala Ramesh Bajaj (Caveatrix)

Bombay HC2 Apr 2024IA/1217/2023

Case brief

AI extract

What is this about?

The Court dismissed caveats filed by Class II heirs in probate proceedings where Class I heirs had consented to the grant of probate. The Court held that Class II heirs have no caveatable interest in the presence of Class I heirs under Sections 8 and 9 of the Hindu Succession Act. One caveat was withdrawn.

What did the court decide?

Caveats filed by Mala Ramesh Bajaj and Gopal Ramesh Vazir dismissed.

Neelam Ashok Vazir(Petitioner) and Ashok Naraindas… — Succession and Inheritance | Bombay HC (2024)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION

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INTERIM APPLICATION NO.1217 OF 2023

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CAVEAT (L) NO.7560 OF 2021 IN

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TESTAMENTARY PETITION NO.3201 OF 2019

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Neelam Ashok Vazir … Applicant In the matter of: Neelam Ashok Vazir … Petitioner Vs. Mala Ramesh Bajaj … Caveatrix

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ALONG WITH

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INTERIM APPLICATION (L) NO.21699 OF 2021

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CAVEAT (L) NO.7693 OF 2021

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TESTAMENTARY PETITION NO.3201 OF 2019

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Neelam Ashok Vazir	… Applicant
In the matter of:
Neelam Ashok Vazir	… Petitioner
Vs.
Gopal Ramesh Vazir	… Caveator

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Mr. Pradeep J. Thorat a/w. Ms. Aditi S. Naikare for Petitioner.

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Mr. Chaitanya Chavan a/w. Ms. Siddhi Kadam i/b. Vigil Juris for Respondent / Caveatrix in Caveat (L) No.7560 of 2021.

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Mr. Aseem Naphade a/w. Ms. Janhavee Joshi i/b. Mr. A. P. Singh for Caveator in Caveat (L) No.7693 of 2021.

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CORAM : MANISH PITALE, J. DATE : APRIL 02, 2024

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P.C. :

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. Heard learned counsel for the parties.

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These applications have been filed for dismissing caveats filed by

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MINALSANDIPPARAB Digitally signedby MINALSANDIP PARABDate:2024.04.0323:43:02 +0530

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one Mala i.e. sister of the deceased and Gopal i.e. nephew of the deceased.

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In the present case, the probate petition was filed by the petitioner i.e. the widow of the deceased wherein the son, daughter and mother of the deceased gave their consent affidavits. Before the probate could be actually granted, the mother of the deceased i.e. Chandrabai expired. At this stage, upon the department calling upon the petitioner to take appropriate steps as regards the death of Chandrabai i.e. the mother of the deceased, the caveatrix Mala being the daughter of the deceased Chandrabai and caveator Gopal being grandson and Tina being the granddaughter of the deceased Chandrabai, were brought on record.

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It is the case of the petitioner that since the petitioner herself and her two children being the only surviving Class I legal heirs of the deceased have consented to the probate being granted, there is no question of caveatrix Mala and caveator Gopal having any caveatable interest in the present proceedings. It is submitted by the learned counsel appearing for the applicants that the caveats deserve to be dismissed as both, the caveatrix Mala and caveator Gopal, are admittedly Class II heirs of the deceased. By operation of Sections 8 and 9 of the Hindu Succession Act, 1956, the aforesaid caveators cannot have any caveatable interest.

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The learned counsel appearing for the caveator Gopal, on instructions, seeks permission to withdraw the caveat. It is indicated that the said Gopal has already filed a suit wherein the deceased Ashok was the defendant and he intends to pursue the said suit.

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In the light of the statements made on behalf of the caveator Gopal, his caveat is dismissed as withdrawn. Needless to say, the said Gopal would be at liberty to pursue the suit filed by him in accordance

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with law.

The learned counsel appearing for the caveatrix Mala submits that one of the contentions raised in the application seeking dismissal of caveat is that the deceased mother Chandrabai had already given her consent affidavit, and therefore, the caveatrix Mala, being her daughter, cannot raise any objection with regard to the grant of probate. It is further indicated that the caveatrix Mala, being the daughter of the deceased Chandrabai, would be entitled to the estate of her deceased mother and hence on that ground also, the caveat is maintainable. Reliance is placed on judgement of this Court in the case of Dhirendra @ Bitu Ranjit Thakkar Vs. Mahendra Balbhadra Thakkar , 2014 (3) Mh.L.J. 9 .

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This Court is of the opinion that the aforementioned judgement in the case of Dhirendra @ Bitu Ranjit Thakkar Vs. Mahendra Balbhadra Thakkar ( supra ) is factually distinguishable. In the said case, the deceased was a bachelor and his brother, who was also the attesting witness, had filed an affidavit stating that the Will was indeed executed in his presence. During the pendency of the probate petition, the said brother, who was also the attesting witness, expired and in that backdrop, citation was served on the son of the said brother. An argument was made before this Court that since the brother, as an attesting witness, had already submitted an affidavit, his son could not be permitted to raise any objection with regard to grant of probate. In the facts of the said case, this Court found that merely because the affidavit of the attesting witness, who happened to be the brother, was on record, the son could not be prohibited from maintaining the caveat. The said judgement proceeds on the basis of the son of the brother of the deceased was having a caveatable interest, particularly in the backdrop of the fact that the deceased had died a bachelor.

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In the present case, the deceased is survived by his Class I heirs, which include a son and a daughter, who have given their consent affidavits. No doubt, the mother Chandrabai was also one of the Class I heirs and she had given her consent affidavit, but the present application seeking dismissal of caveat is not just based on the consent affidavit of the mother, who died during the pendency of the present petition, but the very caveatable interest of daughter Mala is contested in the present application. This Court finds that caveatrix Mala, being the daughter of the deceased Chandrabai is, at best, a Class II legal heir and in the face of the admitted position on facts that Class I legal heirs of the deceased Ashok are available and they are supporting grant of probate of the subject Will, there is no question of caveatrix Mala as a Class II legal heir claiming any caveatable interest. The operation of Sections 8 and 9 of the Hindu Succession Act, clearly indicates absence of caveatable interest in caveatrix Mala and therefore, the application deserves to be allowed.

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Accordingly, Interim Application No.1217 of 2023 is allowed and the caveat filed by caveatrix Mala is dismissed.

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Interim Application (L) No.21699 of 2021 is disposed of by recording the aforesaid statement of the learned counsel appearing for the caveator Gopal that the said caveator is withdrawing the caveat.

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In view of the above, the department shall now proceed further in accordance with law expeditiously.

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(MANISH PITALE, J.)

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Minal Parab

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Neelam Ashok Vazir(Petitioner) and Ashok Naraindas Vazir (Deceased) v. Mala Ramesh Bajaj (Caveatrix)

Case brief

What is this about?

What did the court decide?

Neelam Ashok Vazir(Petitioner) and Ashok Naraindas Vazir (Deceased) v. Mala Ramesh Bajaj (Caveatrix)

Case brief

What is this about?

What did the court decide?

What the court decided

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