JUDGMENT - VAZIFDAR S.J., J.:—The Notice of Motion is taken out by the plaintiff/petitioner to have the caveat filed by the defendant dismissed and to process the above petition as if it is uncontested.

2. The plaintiff filed the above petition for grant of letters of administration with the Will and Testament of his brother one Venkatapathy Ramnath (hereinafter "the deceased") annexed. The defendant is the son of one V.V. Ramnath a predeceased brother of the deceased.

3. The petitioners case is that the deceased died on 20th June, 2001 leaving behind his last Will and Testament dated 28th June, 2000. No executors having been named in the Will, the plaintiff filed the petition pursuant to section 232 of The Indian Succession Act, 1925 under section 232, when a deceased has made a Will, but has not appointed an executor, a universal or residuary legatee may be admitted to prove the Will and letters of administration with the Will annexed may be granted to him of the whole estate, or of so much thereof as may be unadministered.

4. As stated earlier the plaintiff is the brother of the deceased. The defendant/caveator, is the son of one V.V. Ramnath, who was the predeceased brother of the deceased. Thus V.V. Ramnath was not alive on the date of the death of the deceased.

5. Section 9 of The Hindu Succession Act, 1956 reads as under :-

"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".

Admittedly there are no Class I heirs. Class II of the Schedule in so far as it is relevant, reads as under :-

I. ..........................

II. (1) ..........., (2) ........., (3) brother, (4) .......

III. ............................

IV. (1) Brothers son (2) .................. (3) ................ (4) ..................

V. ..........................

VI. ........................

VII. .......................

VIII. ......................

6. Mr. Engineer, the learned Counsel appearing on behalf of the plaintiff, submitted that in view of these uncontroverted facts, the defendant has no interest in the estate of the deceased and consequently no locus standi to file the present caveat. The submission is well founded.

7. The plaintiff and the defendant fall under Entries II and IV respectively of Class II of the schedule to the Hindu Succession Act, 1956. In view of section 9 of the Act, the plaintiff would succeed to the estate of the deceased in priority to the defendant on intestacy. Even assuming therefore that the Will is set aside, the defendant would have no interest whatever in the estate of the deceased.

8. In support of his submission, Mr. Engineer relied upon the judgment of D.R. Dhanuka, J., (as he then was) in the case of (Jayshree Raghuvir Balgi v. Gokuldas Sheshgiri Prabhu)1, 1993(1) Bom.C.R. 230. In that case, the deceased died on 30th June, 1983 leaving behind his widow and two daughters. They therefore, were Class I heirs. One of the daughters filed a petition for probate in respect of the Will left by the deceased. The nephew of the deceased filed a caveat.

It was inter alia held that even if the deceased had died intestate, his estate would have been inherited by the plaintiffs therein and not by the defendant. It was thus held in paragraph 5 : "In this case, the nephew of the deceased has filed the caveat although he is not the heir in any sense of the term".

9. Relying upon an earlier judgment of this Court, it was further held that the caveator cannot claim adversely to the testator and seek resolution of a title dispute by a Probate Court. In this view of the matter, the learned Judge held as under :

"6. On the averments made in the affidavit in support of the caveat, I have reached the conclusion that the caveator in this case is not entitled

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