Important Point - 50% of the state of the deceased shall go together to the Plaintiff and Defendant No.2 and 50% shall go to Defendant No.3.

Both counsel for the Plaintiff and Defendant No.3 submit that since only interpretation of Section 55 of the Indian Succession Act, 1925 ('the Act' for brevity) would answer the issues framed by this Court, there was no need to lead any evidence in the matter. Counsel submitted that the entitlement is agreed between the Plaintiff, Defendant Nos.2 and Defendant No.3 but what is the proportion in which they are entitled to, was the only point to be decided and the Court after hearing the parties can go ahead and pass a preliminary decree. The issue therefore is :

“Whether the lineal descendants of deceased brothers and sisters shall, in certain events, succeed to the property of the intestate, per stirpes or per capital ?”

2. Mr.Ardeshir Choksey had six children, two sons and four daughters. Both sons, viz. Mr.Edulji Ardeshir Choksey and Mr.Ratan Ardeshir Choksey were unmarried and died intestate. Two of the daughters Ms.Naju Ardeshir Choksey and Ms.Sheroo Ardeshir Choksey were also unmarried and died intestate. Only two daughters, namely Mrs.Nergish Chandrakant Kodknany and Mrs. Bachoo Phiroze Chaina got married. Nergish had two daughters Ms.Anita Chandrakant Kodknany and Mrs.Rita Mahesh Swamy and Bachoo had one daughter Mrs.Naznin M. Meherji. Anita is the Plaintiff, Rita is Defendant No.2 and Naznin Meherji is Defendant No.3. The Plaintiff and Defendant No.2 are together and Defendant No.3 is the main contesting Defendant. Defendant No.1, not belonging to the family, is the Administrator of the estate. Family tree of Ardeshir Chowksey is as under :-

3. The suit has been filed for administration of the estate of Edulji Ardeshir Choksey, Sheroo Ardeshir Choksey and Ratan Ardeshir Choksey who died instate (all of whom are collectively referred to as the deceased). It is the case of the Plaintiff that it be declared that the Plaintiff, Defendant No.2 and Defendant No.3 have equal shares in the estate of the deceased.

4. It is the case of Defendant No.3 that 50% of the estate of the deceased should be distributed between the Plaintiff and Defendant No.2 (i.e. 25% each) and balance 50% to go to Defendant No.3. According to Defendant No.3, if Nergish, mother of the Plaintiff and Defendant No.2 and Bachoo mother of Defendant No.3, had been alive, they would have been entitled to 50% share each to the estate of the deceased. Thus, the Plaintiff and second Defendant are collectively entitled to 50% share of the estate of the deceased and the third Defendant is entitled to 50% of the estate of the deceased and not equally. Defendant No.3 states that the Plaintiff and second Defendant will not be entitled to 1/3rd share of the estate as claimed in the suit. The dispute, therefore, is whether the Plaintiff and Defendant No.2 together to get 50% or together get 66.66%. The value of 16.66% is rather substantial and that is the cause for disagreement.

5. Mr.Tamboly appearing for Defendant No.3 also relied upon the judgment of this Court in the matter of 22 ILR Bom 910, Hirjibhai Cursetji Bhandupwala V/s. Barjorji Sorabji Ashburner & Ors. He submitted that the distribution should be per stirpes and not per capita. Mr. Tamboly also relied upon the definition of Propinquity from Wharton's Law Lexicon, Sixteenth Edition.

6. Section 55 of the Indian Succession Act, 1925 reads as under:-

“55. Division of property where intestate leaves neither lineal descendants nor a widow or widower nor a widow of any lineal descendant.— When a Parsi dies leaving neither lineal descendants nor a widow or widower nor a widow or widower of any lineal descendant, his or her next-of-kin, in the order set forth in Part II of Schedule II, shall be entitled to succeed to the whole of the property of which he or she dies intestate. The next-of-kin standing first in Part II of that Schedule shall be preferred to those standing second, the second to the third, and so on in succession, provided that the property shall be so distributed that each male and female standing