Bombay High Court
Prashant Gopal Gokhale vs Manasi Shyamsunder Kelkar on 3 December, 2014
Bench: G.S. Patel
919-NMT-422012.DOC
ars
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
NOTICE OF MOTION NO. 42 OF 2012
IN
TESTAMENTARY SUIT NO. 74 OF 2012
IN
TESTAMENTARY PETITION NO. 1196 OF 2011
Prashant Gopal Gokhale,
Indian Inhabitant, residing at B-103, Mohana,
Gokuldham, Mumbai 400 063. ...Petitioner
Versus
Manasi Shyamsunder Kelkar,
Indian Inhabitant, residing at Room Nos. 3,
Madhav Wadi, Central Bungalow,
Marathi Grantha Sangralay Marg,
Dadar (West), Mumbai 400 015. ...Caveator
Mrs. Swati P. Gautam, for the Petitioner.
Mr. Suresh More, for the Defendant.
CORAM: G.S. PATEL, J
DATED: 3rd December 2014
ORAL JUDGMENT:-
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1.
This is the Plaintiff's Notice of Motion for dismissal of a
Caveat filed by one Manasi Shamsunder Kelkar on 24th November
2011.
2. The Motion itself has a chequered history. It was first
dismissed on 21st January 2014. Mr. Justice Dhanuka held that
since the Caveat was filed by the widow of a brother of the testator,
the brother having died before the testator, the Caveatrix had a
cavetable interest. The other heirs cited are the deceased testator's
sisters.
3.
The matter was carried in appeal. It seems that before the
Appeal Court points were not urged before the learned single Judge
were argued including inter alia that one of the properties dispute is
tenanted; that tenancy rights cannot be bequeathed; and therefore
the Caveatrix was entitled to sustain the Caveat. Paragraphs 4 and 5
of the Appeal Court read as follows:
4. It appears that the contentions raised by the
learned counsel on either side were not raised before the
learned Testamentary Judge. Hence, we set aside the
order dated 21 January 2014. The Notice of Motion
No.42 of 2012 will be restored before the learned
Testamentary Judge and will be heard afresh and
decided in accordance with law after considering all
contentions available to the parties.
5. The appeal is accordingly allowed in the aforesaid
terms without expressing any opinion on the merits of
controversy between the parties. All contentions are kept
open.
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4. It seems to me clear from a reading of the Appeal Court's
order that the Appeal was not decided on merits at all. All
contentions were, in fact, expressly kept open. It was only because
points were raised before the Appeal Court that were not reflected
in the order of the learned single Judge that the matter was
remanded. This is how the Notice of Motion comes up for hearing
and final disposal today.
5. One Sudhakar Dattatray Kelkar ("Sudhakar") died in
Mumbai on 21st December 2010. He is said to have left a Will dated
13th December 2010. Sudhakar was a bachelor. A Petition for
probate of that Will was brought by the executor named in it, one
Prashant Gopal Gokhale. In the Petition, Sudhakar's three sisters,
Nilima Prabhakar Khare, Neela Narhari Pethe and Vaishali Vasant
Gadre, were cited as Sudhakar's heirs and next kin.
6. A Caveat was filed by one Manasi Shamsunder Kelkar
("Manasi") on 24th November 2011. She has filed an Affidavit in
Support of her Caveat. Manasi is the widow of one Shyamsunder
Dattatray Kelkar ("Shyamsunder"), Sudhakar's brother.
Shyamsunder died before Sudhakar. Had Shyamsunder been alive,
he would undoubtedly have been an heir of the Sudhakar as well.
The submission therefore is that Shyamsunder's widow succeeds to
Shyamsunder's interest in Sudhakar's estate. Indeed, it is on this
basis that the learned single Judge was earlier persuaded to dismiss
the Notice of Motion.
7. But Mr. More on behalf of Manasi takes an additional plea as
well. He submits that under Clause 8 of the Will in question,
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Sudhakar purportedly made a bequest of his share in an immovable
property that is admittedly tenanted i.e. Rooms No. 3 and 4,
Madhavwadi, Central Bungalow, Dadar, Mumbai 400 014. Mr.
More submits that any such bequest is illegal and void, and that it is
settled law that a tenancy can only be inherited; it cannot be the
subject matter of a bequest. There can be no quarrelling with that
proposition. It is undoubtedly the correct position in law.
8. Mr. More is, however, in error in his submission, one that I
believe is somewhat more than merely fantastic, that a probate
decides questions of title. He cites no authority in support of this
proposition. He cannot. That law has been settled for several
decades,1 possibly centuries. I regret that it is not possible to roll
back jurisprudential history in the manner Mr. More suggests.
9. Mr. More's submission, therefore, that should Probate be
granted, Manasi, who is in occupation of his tenanted property, will
be evicted is entirely without substance. Manasi's rights, whatever
they may be, over the tenanted premises remain unaffected by the
grant of Probate. The probate itself cannot cause her eviction. Her
rights to the tenanted property must be established by a court of
competent jurisdiction in a properly brought proceeding. These
cannot be decided by the Probate Court. Indeed, they cannot be
decided by the High Court. The submission that the Appeal Court
has 'required' the Probate Court to decide the questions of
Manasi's tenancy is entirely misplaced and unsustainable.
Krishna Kumar Birla v Rajendra Singh Lodha, (2008) 4 SCC 300; Hem
Nolini Judah v Isolyne Sarojbashini Bose, AIR 1962 SC 1471; Ghulam
Qadir v Special Tribunal, (2002) 1 SCC 33; Elizabeth Anthony v Michel
Charles John Chown Lengera, (1990) 3 SCC 333
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10. Similarly any claim that Manasi may have in any other
properties are also unaffected by the grant of probate. Her claims to
title to any property are not decided in probate proceedings.
11. This leaves the question of whether the Caveatrix has any
caveatable interest whatsoever in the property. Mrs. Swati Gautam,
learned advocate for the Petitioner, draws attention to Sections 8, 9
and 11 of the Hindu Succession Act which read as follows:
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.
9. Order of succession among heirs in the
Schedule.- Among the heirs specified in the Schedule,
those in class I shall take simultaneously and to the
exclusion of all other heirs; those in the first entry in
class II shall be preferred to those in the
second entry; those in the second entry shall be
preferred to those in the third entry; and so on
in succession.
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11. Distribution of Property among heirs in
class II of the Schedule.- The property of an
intestate shall be divided between the heirs
specified in any one entry in class II of the
Schedule so that they share equally .
(Emphasis supplied)
12. From conjoint reading of these Sections, the following
principles emerge:
(a) The heirs in Class I will take or inherit in preference to
those in class II.
Section 8(b) makes it clear that where there is no heir
(b)
in class I the devolution is upon the heirs in class II of
the schedule.
(c) Then comes Section 9 and this makes it clear that
where class I heirs inherit they all take simultaneously
and to the exclusion of all other heirs. However, the
picture is slightly different for class II heirs simply
because class II has a number of sub-entries from I to
IX. These are set out in a hierarchical fashion.
(d) Section 9 makes it clear that the heirs in the first entry
in class II are to be preferred to the heirs in the second
entry to the class II; those in the second entry to be
preferred to those in the third entry; and so on. What
this means is that if where the devolution is on heirs in
class II, those in a higher-echelon entry take in
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preference to those lower in the hierarchy. For
instance, if the deceased's father is alive, and since the
father is in a prior entry, he will take to the exclusion of
the other heirs mentioned in entries II to IX. In short,
the heirs in a higher numbered entry oust those in an
entry that is numbered after them.
13. The sisters of a deceased Hindu fall in Entry II of Class II. A
brother's widow is in Entry VI of class II. It is clear, therefore, that
the sisters will take to the exclusion of the predeceased brother's
widow.
14. This issue came up for consideration before a learned single
Judge of our Court (Mr. V.C. Daga, J, as he then was) in
Ashitkumar Surendra Mehta v. Trilochanben Thakorlal Fojdar.2 It
appears that this decision was not brought to the notice of Mr.
Justice Dhanuka when this Notice of Motion was first decided; the
decision was, however, cited before the Division Bench in appeal.
15. I am not only in respectful agreement with the Ashitkumar
decision, I am bound by it. In that decision Section 9 has been
construed in the same manner as I have observed above. The
caveators in that case fell under Item 2 of Entry II of Class II. The
other heirs were those in Items No. 3 and 4 of Entry IV of Class II.
The Caveators therefore, took no interest in the estate, held Mr.
Justice Daga.
2008 (4) Bom. C.R. 372
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16. It may not be out of place to note that the Ashitkumar
decision came up before Mr. Justice Dhanuka recently in Panna
Surendra Mehta v Jaisukh Krishnalal Shah & Anr. 3 The Ashitkumar
decision was cited before and followed by Mr. Justice Dhanuka in
Panna Surendra Mehta. Again, not only am I in respectful
agreement with the decision in Panna Surendra Mehta, but I am
bound by it. There are, thus, not one but two earlier decisions of
learned single Judges of this Court that are binding on me.
17. In this case, the Caveatrix Manasi, as the "brother's wife"
falls in Entry VII of Class II, while Sudhakar's three sisters find
place in Entry II, Class II. The sisters will necessarily therefore take
to the exclusion of the predeceased brother's widow.
18. The Caveatrix has thus no caveatable interest. She also gains
no caveatable interest on account of her claim to the tenanted
premises. On either count, her claim to a caveatable interest must
fail.
19. Notice of Motion is therefore is made absolute in terms of
prayer clauses (a) and (b). The Caveat filed by Manasi Shaysunder
Kelkar is dismissed and discharged.
This being the only caveat, the Suit succeeds. It is decreed.
20.
Drawn up decree dispensed with. Petition to be proceed as
uncontested Petition for the grant of Probate. Probate should be
(2014) 3 Mh. L. J. 724. It is indeed piquant that Panna Surendra Mehta
involved succession to the estate of Trilochanaben, one of the
Caveators in the earlier Ashitkumar case before Mr. Justice Daga.
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issued expeditiously. All concerned to act on an authenticated copy
of this order.
(G. S. PATEL, J.)
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