Bombay High Court
Jitendra Pranlal Sanghavi vs Chandrika Yograj Nanda @ Chandrika ... on 20 June, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-OS:9288
SWAROOP Digitally
by SWAROOP
signed
SHARAD SHARAD PHADKE
PHADKE Date: 2024.06.26
21:02:20 +0530
13-nms-196-2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
NOTICE OF MOTION NO.196 OF 2019
IN
TESTAMENTARY PETITION NO.2487 OF 2018
Jitendra Pranlal Sanghavi ...Petitioner
vs.
Kewalraj Premraj Nanda ...Respondent
Chandrika Yograj Nanda @ Chandrika Nanda ...Deceased
Mr. Rajesh Shah a/w. Ms. Shruti Lakhani i/b. Mr. A.R. Bapat, for the Petitioner.
CORAM : N. J. JAMADAR, J.
DATE : JUNE 20, 2024
P.C.:
1. Heard the learned counsel for the parties.
2. The petitioner in Testamentary Petition has taken out this Notice of Motion for the following relief:-
(a) The Caveat (L) No. 112 of 2019 and CST No. 232 of 2019 for condonation of delay in filing the Caveat in the above matter filed by the above-named Caveator be dismissed with cost as he does not have any locus in the above matter.
3. This petition is for probate of the last Will and Testament of Chandrika Yograj Nanda @ Chandrika Nanda, who passed away on 10th August, 2018 (the deceased). The deceased had a fixed place of abode at Vile Parle, Mumbai. The deceased left behind the last Will and Testament dated 12 th October, 2011. The ssp ...1 ::: Uploaded on - 27/06/2024 ::: Downloaded on - 15/07/2024 08:15:55 ::: 13-nms-196-2019.doc petitioner is the sole executor named under the said last Will and Testament of the deceased.
4. It is averred in the petition that the deceased died issue-less. Her husband Yograj Nanda, pre-deceased her. The next of kin left behind by the deceased shown in paragraph 10 of the petition are step-daughter, step-daughter-in-law, step grand-daughter and step-grand son of the deceased who are not entitled to succeed to the estate of the deceased in the event of intestacy. Yet, Kewalraj Nanda, has filed a Caveat and taken out a Chamber Summons for condonation of delay of 5 days in filing affidavit in support of Caveat. Hence, this Notice of Motion.
5. At the outset, it must be noted that despite ample opportunity the Caveator has not appeared and contested the Notice of Motion though pleadings are complete. With a view to give an opportunity to the Caveator, this Court twice adjourned the matter making it clear that, if none appeared, the Court would be constrained to proceed with the hearing and disposal of the Notice of Motion and Chamber Summons. Yet, none appeared for the Caveator.
6. The principal contention of the petitioner/applicant in Notice of Motion is that Caveator has no caveatable interest.
7. I have heard Mr. Shah, the learned counsel for the petitioner, at some length.
8. Since there does not seem to be much controversy on facts, the question ssp ...2 ::: Uploaded on - 27/06/2024 ::: Downloaded on - 15/07/2024 08:15:55 ::: 13-nms-196-2019.doc as to whether the Caveator has caveatable interest is required to be determined on the basis of governing provisions of law.
9. To begin with, it is necessary to note the relationship between the parties to properly appreciate the challenge that the Caveator has no caveatable interest.
Yograj Mulraj Nanda (died testate on 22/02/1994) (His last Will was probated in Suit No. 19 of 1997 in TP No. 705 of 1996 and order for probate was passed on 02/09/1997) ↓
-----------------------------------------------------------------------------
↓ ↓
Tarabai Yograj Nanda Chandrika Yograj Nanda
(First wife) (Second wife)
(Marriage dissolved as per decree (Died testate on 18/08/2018
in Suit No. 346 of 1955) without issue)
↓
-------------------------------------------------
↓ ↓
1] Preeti Suresh Rawal 2] Premraj Yograj Nanda
(step daugher) (step son)
(Died on26/06/1997 and survived by)
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↓ ↓ ↓ ↓
1) Padma P. Nanda 2) Kewalraj P. Nanda 3) Chandani P. Nanda 4) Rishiraj P. Nanda (step-granddaughter) (step-grandson/Caveator) (step-granddaughter) (step-grandson)
10. Mr. Shah, learned Counsel for the Petitioner submitted that Yograj Nanda, the husband of the deceased, predeceased her. Likewise, Premraj Nanda, the step son of the deceased and father of Kevalraj Nanda, - Caveator, had also pre- deceased the deceased. Since the deceased passed away issue-less, the step children of the deceased do not inherit the estate of the deceased as they are not ssp ...3 ::: Uploaded on - 27/06/2024 ::: Downloaded on - 15/07/2024 08:15:55 ::: 13-nms-196-2019.doc covered by the expressions "sons and daughters (including the children of any predeceased son or daughter)" under clause (a) of sub-Section (1) of Section 15, which provides general rules of succession in case of female Hindus. Resultantly, the property would devolve upon the heirs of the husband of the deceased. However, since Premraj step son of the deceased, had predeceased her, according to Mr. Shah, the Caveator would not fall within the ambit of Class I heirs of Yograj enlisted in the Schedule appended to Hindu Succession Act, 1956. Thus, Kevalraj Nanda - the Caveator has no caveatable interest.
11. To bolster up the submission that under Section 15(1)(a) of the Hindu Succession Act, 1956, step children of a female Hindu are not included in the expression "sons and daughters", Mr. Shah placed reliance on a decision of the Supreme Court in the case of Lachman Singh V/s. Kirpa Singh and Ors.1.
12. On the aspect of the devolution of interest on the heirs of the husband of the deceased, Mr. Shah placed a strong reliance on the decision of the Supreme Court in the case of Seethalakshmi Ammal V/s. Muthuvenkatarama Iyengar and Anr.2.
13. To start with, it may be necessary to appreciate as to what constitutes a caveatable interest. Chapter IV of the Indian Succession Act, contains a fasciculus of the provisions under the heading "of the Practice in Granting and Revoking Probates and Letters of Administration". Section 283 of the Indian 1 AIR 1987 SC 1616 2 AIR 1998 SC 1692 ssp ...4 ::: Uploaded on - 27/06/2024 ::: Downloaded on - 15/07/2024 08:15:55 ::: 13-nms-196-2019.doc Succession Act, 1925, inter alia, provides that in all cases, the District Judge or District Delegate may, if he thinks proper - inter alia, issue citation calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration. This expression 'all persons claiming to have any interest' refers to a caveatable interest.
14. Section 284 of the Indian Succession Act, 1925 provides for filing of caveats against the grant of Probate and administration with the District Judge or District Delegate. Once the caveat is lodged, the proceedings become contentious and the right to probate and letters of administration has to be decided in a testamentary suit.
15. A caveatable interest denotes the interest in the estate of the testator which may be affected by grant of Probate of the Will of the deceased. By its very nature, the existence or otherwise of a caveatable interest, would depend upon the facts of a given case. Whether the grant of Probate or Letters of Administration would prejudice the right of the caveator would be a barometer on which the existence of a caveatable interest can be tested. For that purpose, the law governing intestate succession qua the deceased also needs to be kept in view. If the caveator is likely to succeed in case of intestacy, the existence of caveatable interest can hardly be put in contest.
16. A profitable reference, in this context, can be made to a decision of the ssp ...5 ::: Uploaded on - 27/06/2024 ::: Downloaded on - 15/07/2024 08:15:55 ::: 13-nms-196-2019.doc Supreme Court in the case of Krishna Kumar Birla V/s. Rajendra Singh Lodha and Ors.3 wherein the Supreme Court after an elaborate analysis of the provisions and the precedents, culled out the propositions as under :
"86. The propositions of law which in our considered view may be applied in a case of this nature are :
(i) To sustain a caveat, a caveatable interest must be shown.
(ii) The test required to be applied is: does the claim of grant of probate prejudice his right because it defeats some other line of succession in terms whereof the caveator asserted his right.
(iii) It is a fundamental nature of a probate proceeding that whatever would be the interest of the testator, the same must be accepted and the rules laid down therein must be followed. The logical corollary whereof would be that any person questioning the existence of title in respect of the estate or capacity of the testator to dispose of the property by Will on ground outside the law of succession would be a stranger to the probate proceeding inasmuch as none of such rights can effectively be adjudicated therein.
89. While determining the said question, the law governing the intestate succession must also be kept in mind. The right of the reversioner or even the doctrine of "spes successionis" will have no application for determining the issue in a case of this nature.
103. What would be caveatable interest would, thus, depend upon the fact situation obtaining in each case. No hard and fast rule, as such, can be laid down. We have merely made attempts to lay down certain broad legal principles.
135. It is too far fetched a submission that a person having a remote family connection or as an agnate is entitled to file a caveat. A reversioner or an agnate or a family member can maintain a caveat only when there is a possibility of his inheritance of the property in the event the probate of the Will is not granted. If there are heirs intestate who are alive, entertaining of a caveat on the part of another family 3 (2008) 4 SCC 300 ssp ...6 ::: Uploaded on - 27/06/2024 ::: Downloaded on - 15/07/2024 08:15:55 ::: 13-nms-196-2019.doc member or a reversioner or an agnate or cognate would never arise."
(emphasis supplied)
17. On the touchstone of the aforesaid exposition of law, reverting to the facts of the case, indisputably, the caveator and his siblings are the children of Premraj Nanda, the predeceased step son of the deceased. The submission on behalf of the Petitioner that the stepsons are not included in the term 'sons and daughters' under Section 15(1)(a) of the Hindu Succession Act, is impeccable. Reliance on the decision in the case of Lachman Singh (Supra), also appears to be well founded as in the said case, it was explicitly ruled that the words 'sons and daughters.......and the husband' in clause (a) of sub-Section (1) only mean sons and daughters and the husband of the deceased. They cannot be sons and daughters and the husband of anybody else. Step son or step daughter will come only under clause (b) of Section 15(1) or under clause (b) of Section 15(2).
18. The second submission of Mr. Shah that the caveator would have no caveatable interest as to the estate of the deceased in the capacity of the heir of the husband of the deceased, as he would not succeed under clause (b) of Section 15 of the Hindu Succession Act, 1956 now warrants consideration.
19. An endeavour was made to draw home the point that to ascertain as to who were the heirs of the husband of the deceased, recourse is required to be made to Section 8 of the Hindu Succession Act, 1956 and since the caveator would not fall in the heirs enlisted in Class I of the Schedule referred to in Clause ssp ...7 ::: Uploaded on - 27/06/2024 ::: Downloaded on - 15/07/2024 08:15:55 ::: 13-nms-196-2019.doc
(a) of Section 8 of the Hindu Succession Act, 1956, the caveator has no caveatable interest.
20. I am afraid to accede to this submission. Section 8 of the Act, 1956 reads as under :
"8. General rules of succession in the case of males - The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter -
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b)Secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d)lastly, if there is no agnate, then upon the cognates of the deceased."
21. Schedule I of Class I heirs in the Schedule appended to the Act, 1956, reads as under :
"Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son; son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son"
22. In the backdrop of the facts of the case, I am unable to persuade ssp ...8 ::: Uploaded on - 27/06/2024 ::: Downloaded on - 15/07/2024 08:15:55 ::: 13-nms-196-2019.doc myself to agree with the submissions of Mr. Shah that the caveator or for that matter, the other sons and daughters of Premraj, pre-deceased step son of the deceased, do not fall within the category of Class I heirs of the husband of the deceased. Evidently, the caveator as well as other sons and daughters of Premraj satisfy the description of son of pre-deceased son and daughter of pre-deceased son, covered by Class I heirs, qua the husband of the deceased.
23. Mr.Shah submitted that the heirs of the husband of the deceased are required to be ascertained not at the time of the husband's death, but at the time of wife's death, as the succession opens only at the time of her death. Reliance was placed on the decision of Seethalakshmi Ammal (supra).
24. In the said case, the appellant was the daughter in law of the deceased Gomathi Ammal. Venkatarama Iyengar, the husband of the appellant, was the only son of Gomathi and her husband Sesha Iyengar. Venkatarama Iyengar died prior to the death of Gomathi. The appellant had filed a suit for declaration of ownership and possession of the properties left by Gomathi, who died intestate. The Respondent claiming to be the son of Gomathi's brother, contested the suit on the ground that Gomathi made a Will in his favour. The appellant was non- suited on the ground that the appellant is not the heir of her mother-in-law under the Hindu Succession Act. The High Court held that when Sesha, husband of Gomathi died, their son Venkatarama iyengar was alive and, therefore, the appellant cannot be called the widow of a pre-deceased son.
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25. The Supreme Court held that the finding proceeds on a misconception of the provisions of the Hindu Succession Act. In order to decide who are the heirs of a female Hindu under category (b) of Section 15(1), one does not have to go back to the date of the death of the husband to ascertain who were his heirs at that time. The heirs have to be ascertained not at the time of the husband's death but at the time of the wife's death because the succession opens only at the time of her death. Her heirs under S.15(1)(b) will have to be ascertained as if the succession to her husband had opened at the time of her death. Thus, if at the time of Gomathi Ammal's death, there is any heir of her husband who fits the description in the Schedule of being the widow of his pre-deceased son, she will be one of the heirs entitled to succeed.
26. I am unable to appreciate as to how the aforesaid proposition advances the cause of the submission on behalf of the Petitioner so as to question the caveatable interest of Kevalraj Nanda. If properly construed, the aforesaid decision lends support to the claim of the caveator. If it is assumed that the succession to Yograj Nanda, husband of the deceased, opened at the time of the death of the deceased i.e. 18 August 2018, the caveator and other son and daughter of Premraj Nanda - the son of husband of deceased, satisfy the description of 'son of a pre-deceased son; and daughter of a pre-deceased son' enlisted in Class I of the Schedule.
27. It would be contextually relevant to note that under Section 9 of the Hindu ssp ...10 ::: Uploaded on - 27/06/2024 ::: Downloaded on - 15/07/2024 08:15:55 ::: 13-nms-196-2019.doc Succession Act, 1956, among the heirs specified in the Schedule, those in Class I shall take simultaneously and to the exclusion of all other heirs. Therefore, the objection to the tenability of the Caveat on the ground that the caveator has no caveatable interest does not merit acceptance.
28. Resultantly, the Notice of Motion deserves to be dismissed, as in the event of grant of Probate, the interest of the Caveator would be potentially affected as he is entitled to succeed to the estate of the deceased in case of intestacy.
29. Hence, the Notice of Motion stands dismissed.
30. No costs.
(N. J. JAMADAR, J.)
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