The central legal point established in the judgment is the interpretation of the rules of distribution in cases of intestacy and the definition of 'kindred' or 'consanguinity' under the Indian Succession Act 1925.

1. The Respondent (“Savio”) filed Testamentary Petition No. 119 of 2014 in which he propounded a Will dated 1st January 2013 of one Joseph John Remedios (“Joseph”). He said that Joseph died on 4th January 2013 leaving a Will dated 1st January 2013. Savio claims that he was looking after Joseph. The Will he propounded named Savio as the executor. Savio is the major legatee under the Will. Another legatee was one Dean D’Souza.

2. Savio is not related directly by blood to Joseph, the testator. Joseph was married to a lady named Maria. Savio’s mother, Mary and Maria were sisters. Thus, Savio is Joseph’s wife’s sister’s son. Maria died on 23rd November 2010. Joseph was thus a widower. Maria had other sisters. The two Petitioners in the revocation Petition, viz., Angelina Pascoal Mendes and Philomena Pascoal Mendes, are both Maria’s sisters and, therefore, also Mary’s sisters and are both, therefore, Savio’s maternal aunts.

3. The Testamentary Petition was amended on 24th June 2014. Savio did not cite anyone in his probate Petition. He only mentioned that Joseph had one sister, Anita Remedios, who died on 29th August 2000. Joseph’s father John Remedios died on 19th April 1944 and his mother, Martha died on 28th February 1974.

4. The submission from Mr. Bhagattjee is that Joseph had no heirs at all; his only next of kin was his sister, Anita, who died before Joseph. The claimants/present Petitioners were not Jospeh’s heirs; they were his predeceased wife’s heirs, being her sisters. They could not succeed to Joseph’s estate even on intestacy, and hence Savio had no need to cite them in his petition for probate to Joseph’s Will. Savio brought that probate Petition as a named executor. He was duty bound to apply for probate.

5. As a general principle, I think this is a correct interpretation of the relevant provisions Indian Succession Act 1925. Chapter II deals with the Rules that apply to intestates other than Parsis. Section 32 makes it clear that the property of the intestate devolves upon the wife or husband, or on the kindred of the deceased in the order and according to the rules hereinafter contained in Chapter II. Sections 33, 33A, 34 and 35 read :

“33. Where intestate has left widow and lineal descendants, or widow and kindred only, or widow and no kindred.— Where the intestate has left a widow —

(a) if he has also left any lineal descendants, one-thirds of his property shall belong to his widow, and the remaining two-thirds shall go to his lineal descendants, according to the rules hereinafter contained;

(b) save as provided by section 33A, if he has left no lineal descendant, but has left persons who are of kindred to him, one-half of his property shall belong to his widow, and the other half shall go to those who are kindred to him, in the order and according to the rules hereinafter contained;

(c) if he has left none who are of kindred to him, the whole of his property shall belong to his widow.

33A. Special provision where intestate has left widow and no lineal descendants.— (1) Where the intestate has left a widow but no lineal descendants and the net value of his property does not exceed five thousand rupees, the whole of his property shall belong to the widow.

(2) Where the net value of the property exceeds the sum of five thousand rupees, the widow shall be entitled to five thousand rupees thereof and shall have a charge upon the whole of such property for such sum of five thousand rupees, with interest thereon from the date of the death of the intestate at 4 per cent, per annum until payment.

(3) The provision for the widow made by this section shall be in addition and without prejudice to her interest and share in the residue of the estate of such intestate remaining after payment of the said sum of five thousand rupees with interest as aforesaid, and such residue shall be distributed in accordance with the provisions of section 33 as if it were the whole of such intestate’s property.

(4) The net value of the property