1. This Notice of Motion is taken out for dismissal of the Caveat filed by Defendant No.3. The Caveat of Defendant Nos.1 and 2, as the heirs of the deceased, is already filed. Defendant No.3 has sought to file the Caveat on the ground that he is the step-son of the brother of the deceased. The Plaintiff claims that he is not an heir of the deceased who is required to be served with the citation. The deceased is one Merlyn Loretta Patton. Her pre-deceased brother was Derrick Patton. Defendant No.2 in the suit is the son of Derrick Patton through his first wife. Derrick Patton had remarried. Defendant No.3 is the son of the second wife of Derrick Patton through her first husband.

2. To claim to be the heir of the deceased, Defendant No.3 must be shown to be having a blood relationship with the deceased. Under Section 27(b) of the Indian Succession Act, 1925 (the Act), such blood relationship may be by full blood or half blood. Such half blood relationship must also be shown to be with the deceased. Defendant No.3 is the step-son of Derrick, being the son of his second wife through her previous marriage. Defendant No.3 would be the step-brother of Defendant No.2 who is the son of Derrick through his first wife. However, Defendant No.3 has no blood relationship with Derrick as also the deceased.

3. It has been held in the case of Mrs.Mary Dowling vs. Mrs. Margaret Merwan, AIR 1991 Bombay 389 that the step daughter is not a child within the meaning of Section 37 of the Act. Defendant No.3 claims to be the step-son of the brother of the deceased. Hence his relationship is further remote. In the case of Mary (supra), one step-daughter claimed to be the only heir of one John. The sisters of John claimed that the step-daughter was not the heir and, therefore, they were the only heirs. The succession to the estate of John was to be determined under Section 37 of the Act on the premise that John had left no child through any blood relationship as required under Section 27 of the Act. The Court considered the term “Kindred or consanguinity” under Section 24 of the Act. Section 24 runs thus:-

“24.Kindred or consanguinity.- Kindred or consanguinity is the connection or relation of persons descended from the same stock or common ancestor.”

Consanguinity, lineal or collateral under Sections 25 and 26 of the Act run thus:-

“25. Linealconsanguinity.-(1)Lineal consanguinity is that which subsists between two persons, one of whom is descended in a direct line from the other, as between a man and his father, grandfather and great-grandfather, and so upwards in the direct ascending line, or between a man and his son, grandson, great-grandson and so downwards in the direct descending line.

(2) Every generation constitutes a degree, either ascending or descending.

(3) A person’s father is related to him in the first degree, and so likewise is his son; his grandfather and grandson in the second degree; his great-grandfather and great-grandson in the third degree, and so on.”

“26. Collateral consanguinity. (1) Collateral consanguinity is that which subsists between two persons, who are descended from the same stock or ancestor, but neither of whom is descended in a direct line from the other.

(2) For the purpose of ascertaining in what degree of kindred any collateral relative stands to a person deceased, it is necessary to reckon upwards from the person deceased to the common stock and then downwards to the collateral relative, a degree being allowed for each person, both ascending and descending.”

It was held that under either consanguinity, that is whether the person is descended in a direct line or not, there must be a common stock or ancestor. That relationship was held to be the relationship by blood. Further that relationship by blood must be with the deceased. That relationship by blood with the deceased may be by full blood or by half blood under Section 27(b) of the Act which runs thus:

“27. Persons held for purpose of succession