Bombay High Court
Kailash Jaylal Dhadhia And 3 Ors vs Mahesh Jaylal Dadhia (Deceased) And ... on 29 July, 2024
Author: N.J.Jamadar
Bench: N.J.Jamadar
2024:BHC-OS:11206
ial 40840 of 2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
INTERIM APPLICATION (L) NO.40840 OF 2022
IN
TESTAMENTARY PETITION NO.2492 OF 2023
Kailash Jaylal Dadhia ... Applicant
and
Kailash Jaylal Dadhia and Ors. ... Petitioners
versus
Sheetal Vinod Dadhia and Ors. ... Respondents/Caveators
Mahesh Jaylal Dadhia ... Deceased
WITH
TESTAMENTARY PETITION NO.2492 OF 2023
WITH
CAVEAT NO.115 OF 2024
WITH
TESTAMENTARY SUIT NO.101 OF 2024
Ms. Jyoti Mistry i/by S.K.Srivastav and Co., for Applicants.
Mr. Valmiky Narvekar with Ms. Jenish Join, for Respondents.
CORAM: N.J.JAMADAR, J.
DATE : 29 JULY 2024
P.C.
1. Heard the learned Counsel for the parties.
2. The applicant has filed this application to dismiss the Caveat filed by the
Respondents-Caveators in Testamentary Petition No.2492 of 2023.
3. Shorn of unnecessary details, the background facts can be stated as
under :
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3.1 The Petitioners have filed a Petition for Letters of Administration to the
properties and credits of late Mahesh Jaylal Dadhia, who passed away on 19 April
2021. The deceased was the brother of the Petitioners. The wife of the deceased
predeceased him on 7 September 2018. The deceased had no child out of the said
wedlock. The deceased died intestate leaving behind the Petitioners as the only
surviving Class II heirs. Hence, the Petition for Letters of Administration.
4. The Respondents-Caveators who are the wife and children of Vinod
Dadhia, a predeceased brother of the deceased Mahesh Dadhia, have lodged the
Caveat. In the affidavit in support of the Caveat it is, inter alia, affirmed that the
Petitioners have deliberately suppressed the fact that Vinod Dadhia was the brother of
the deceased and there are number of properties of Jaylal and Taradevi, parents of the
deceased and late Vinod Dadhia, which devolved on the deceased, Petitioners and late
Vinod Dadhia.
5. The Petitioners/applicants have preferred this application with the
assertion that the Respondents-Caveators, being the wife and children of predeceased
brother of the deceased, in the presence of the Petitioners, who are the brothers and
sisters of the deceased, are not entitled to inherit the property of the deceased under
Sections 8 and 9 of the Hindu Succession Act, 1956. Therefore, the caveat is required
to be dismissed as the Respondents-caveators have no caveatable interest.
6. I have heard Ms. Jyoti Mistry, learned Counsel for the Applicant and Mr.
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Narvekar, learned Counsel for the Respondents. Perused the Petition, affidavit in
support of the caveat and the averments in the Interim Application.
7. Learned Counsel for the Applicant, banking upon the provisions
contained in Sections 8 and 9 of the Hindu Succession Act, 1956, urged that as the
Respondents - Caveators fall in the 4th Entry of Class II heirs in the Schedule, and the
Petitioners fall in second entry, ex-facie, the Respondents have no caveatable interst as
they would not succeed in case of intestacy, to the estate of the deceased. Therefore,
the caveat deserves to be dismissed.
8. Learned Counsel for the Respondents-Caveators refuted the
submissions on behalf of the applicants. It was urged that the Petition suffers from
gross suppression of facts. The Petitioners have deliberately not averred in the
Petition that the deceased had a predeceased brother and the Respondents are his legal
representatives. Inviting attention of the Court to the description of the properties in
the Schedule of properties, Mr. Narvekar would submit that, on the one hand, the
Petitioners have not included a number of properties spread across various states
which are described in Exhibits 10 and 11 appended to the affidavit in support of the
Caveat and, on the other hand, the petitioners have falsely claimed that the deceased
has 1/5th share in the properties described under the captioned "immovable
properties in the State of Rajasthan".
9. Ms. Mistry joined the issue by canvassing a submission that if the
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Respondents - Caveators intend to lay claim over the assets left behind by Jaylal and
Taradevi, or for that matter, Vinod Dadhia, the Respondents-Caveators ought to
initiate appropriate proceedings. However, they have no caveatable interest to the
extent of the estate left behind by Mahesh Dadhia, the deceased brother of the
Petitioners.
10. It is a common ground that the deceased died intestate. Thus, the
provisions contained in Sections 8 and 9 of the Hindu Succession Act, 1956, would
govern the succession to the estate of the deceased. Under Section 8(b) of the Act,
1956, a property of a male Hindu dying intestate shall devolve upon the heirs being
relatives specified in class II of the Schedule, if there is no heir in Class I. Indisputably,
it does not seem to be the case that the deceased left behind any Class I heir. Under
Section 9 of the Hindu Succession Act, 1956, which regulates the order of succession
amongst heirs in the Schedule, it is provided that among the heirs specified in the
Schedule, those in the first entry in Class II shall be preferred to those in the second
entry and those in the second entry shall be preferred to those in the third entry and so
on in succession.
11. The submission of Ms. Mistry, if viewed in the context of the provisions
contained in Sections 8 and 9 of the Hindu Succession Act, 1956 and the entries in the
Class II of the Schedule, appears alluring. Evidently, the Petitioners fall in the second
entry and the caveator Nos.2 and 3 in the 4 th entry and the Caveator No.1 in the 6 th
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entry. The Petitioners will, thus, have preference over the caveators. However, the
nature of the claim in the Testamentary Petition cannot be lost sight of.
12. In the schedule of properties, the Petitioners have claimed that the
deceased has 1/5th share in the properties described at Items 7, 8 and 9 under the
caption "immovable properties in the State of Rajasthan". It is further claimed that
remaining 4/5th share belongs to the Petitioners. Prima facie, it appears that these
properties devolved on the Petitioners and late Mahesh, from their parents. An
endeavour has thus been made to show that each of the five siblings has 1/5th share in
those properties. However, in the Petition, there is no whisper about the fact that
Vinod Dadhia was the predeceased brother of the deceased.
13. In the aforesaid view of the matter, firstly if the Petitioners claimed that
the deceased had 1/5th share in the estate left behind by their father Jaylal, the widow
and children of Vinod, the predeceased son, would be entitled to succeed as Class I
heirs under the Schedule. Secondly, the absence of the averments in the Petition that
late Vinod Dadhia was the predeceased brother of the deceased cannot be said to be
inconsequential or immaterial. Thus, as the Petitioners and deceased have been
allotted 1/5 share each on the premise that there was no other sibling, the
Respondents-Caveators appear to have a caveatable interest as the administration of
the estate of the deceased on the reckoning that he had 1/5th share in the property
devolved from the parents, would impinge on the rights of the Respondents-caveators.
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14. Resultantly, the application for dismissal of the Caveat does not merit
acceptance.
15. Hence, the following order :
ORDER
(i) The application stands rejected.
(ii) No costs.
( N.J.JAMADAR, J. ) SSP 6/6 Signed by: S.S.Phadke Designation: PS To Honourable Judge Date: 30/07/2024 17:58:09