Bombay High Court
Santsaran Gursaran Advani Alias Papan … vs Nina H. Bhalla And 2 Ors on 20 April, 2026
2026:BHC-OS:9925
ial26854-25.doc
Digitally
signed by
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TRUSHA
TRUSHA TUSHAR
TUSHAR MOHITE ORDINARY ORIGINAL CIVIL JURISDICTION
MOHITE Date:
2026.04.20
15:05:54
+0530
INTERIM APPLICATION (L) NO.26854 OF 2025
IN
SUIT NO.248 OF 2025
Santsaran Gursaran Advani Alias Papan Advani .. Applicant/
Org.Plaintiff
Versus
Nina H. Bhalla and Ors. .. Respondents
Mr.Haresh Jagtiani, Senior Advocate a/w Adv.Pranay Kamdar
Adv.Pushpvijay Kanoji, i/b Adv.Pushpvijay Kanoji, Advocate for the
Applicant/Org.Plaintiff.
Mr.Nirman Sharma a/w Ms.Khushbu Prabhu, Advocate for the
Respondent No.1.
CORAM: FIRDOSH P. POONIWALLA, J.
RESERVED ON: OCTOBER 17, 2025
PRONOUNCED ON: APRIL 20, 2026
Judgement :-
1. The present Suit, in which the Interim Application is filed, seeks
the following final reliefs:
“(a) This Hon’ble Court be pleased to declare that the Plaintiff
is the only sole surviving relative of the Deceased, the late BimalPage 1 of 35
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ial26854-25.docMohan Sikka in accordance with the Hindu Succession Act,
1956 and is entitled to succeed to the entire estate of the said
Deceased in accordance with the applicable laws of intestate
succession.
(b) This Hon’ble Court be pleased to declare that the Alleged
Gift Deed is void ab initio and inoperative.
(c) This Hon’ble Court be pleased to declare that the Plaintiff is
entitled to administer the estate of the Deceased in accordance
with the applicable laws of intestate succession;
(d) This Hon’ble Court be pleased to Order and direct
Defendant No. 3 to handover statements of bank accounts and
demat accounts held in the name of the Deceased singly and/ or
jointly to this Hon’ble Court;
(e) This Hon’ble Court be pleased to Order and direct Defendant
No. 1 to render true and faithful accounts of all dealings and/ or
transactions entered into with respect to the bank accounts,
demat accounts and mutual fund accounts of the Deceased as
held in Defendant No. 3 from the date of the Deceased’s death
till the date of filing of the present suit and thereafter;
(f) That on such disclosure being made by Defendant No. 1,
Defendant No. 1 be Ordered and decreed to pay to the estate all
amounts found due from Defendant No. 1;
(g) The Defendant No.1 be restrained, prohibited and/or
prevented by an Order of permanent injunction from in any
manner, directly and/or indirectly dealing with, transferring,
creating third party rights alienating and/or otherwise disposing
of the properties and assets forming part of the estate of the
Deceased;
(h) The Defendant No. 1 be restrained by an Order of permanent
injunction from holding herself out to be the owner of the said
Flat or a member of the said Society Defendant No. 2 as well as
refrain from effecting any transfer of ownership of the said Flat;
(i) The Defendant No. 2 be restrained by an Order of permanent
injunction from allowing the Defendant No. 1 to access the said
Flat;
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(j) The Defendant No. 3 be restrained by an Order of permanent
injunction from allowing Defendant No. 1 to operate the bank
accounts, demat accounts and mutual fund accounts of the
Deceased held in Defendant No. 3;”
2. The present Interim Application is filed seeking the following
reliefs:
“a) Pending the hearing and final disposal of the present suit
and until the time the entire estate of the Deceased is fully
administered, the Court Receiver, High Court, Bombay or some
other fit and proper person with full powers under Order XL,
Rule 1 of the Code of Civil Procedure, 1908 be appointed as
receiver of the estate of the Deceased;
b) Pending the hearing and final disposal of the present suit, the
Defendants acting by themselves and/or through their servant/
agents and/or representatives, be restrained by an Order and
injunction of this Hon’ble Court from in any manner directly or
indirectly selling, transferring, disposing of and alienating,
encumbering and/or creating any third party rights in respect of
the assets forming part of the estate of the Deceased and such
other assets as may be disclosed on oath by the Defendants or
ascertained by this Hon’ble Court on enquiry.
c) That pending the hearing and final disposal of the present
suit, the Defendant Nos. 1 & 3 be Ordered and directed to
disclose on Affidavit full and complete details and/or particulars
of all the properties (which are to their knowledge) forming a
part of the estate of the Deceased and which are their
possession or control;
d) That pending the hearing and final disposal of the present
suit, the Defendant Nos. 1 & 3 be Ordered and directed to
render true and faithful accounts of all the dealings entered into
by the Defendant Nos. 1 & 3 or any other persons in respect of
the properties of the Deceased and/or any part thereof.
e) That pending the hearing and final disposal of the present
suit, on such disclosure being made and accounts being
rendered, the Defendant Nos. 1 & 3 be ordered and decreed toPage 3 of 35
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ial26854-25.docbring into the estate all amounts found due from them from the
date of the death of the Deceased till the date of filing the
present suit;
f) That pending the hearing and final disposal of the present
suit, Defendant Nos and 1 and 2 be ordered and directed to
deposit the original share certificate in respect of the said Flat
with this Hon’ble Court. In the event, the original share
certificate is not in possession of defendant No. 2, then the
Defendant No. 2 be ordered and directed to issue a duplicate
share certificate and the same be deposited before this Hon’ble
Court.
g) That pending the hearing and final disposal of the present
suit, the Defendants be Ordered and directed to give inspection
to the Applicant/Org. Plaintiff of all relevant documents which
are in their possession which belong to the estate of the
Deceased including original share certificates, title documents
and demat account statements.”
FACTS
3. The Plaintiff is the brother of Late Bimal Mohan Sicka
(hereinafter referred to as the “Deceased”), a Hindu woman who passed away
on 31st May 2025 at the age of 81 years. Defendant No. 1 is one Nina H.
Bhalla, who was first introduced to the Deceased around the year 2004 as a
niece of one Farida Mistry, a friend of the Deceased. Defendant No. 1 is the
Executrix of the Deceased’s estate in terms of the last will and testament
dated 10th April 2023 of the Deceased. Defendant No. 2 is the Nepean Sea
Co-operative Housing Society Limited. Defendant No. 3 is IndusInd Bank
Limited.
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4. The Plaintiff has filed the present Suit against the Defendants for
seeking appropriate reliefs interalia declaring that the Plaintiff is the only
sole surviving relative of the Deceased and is entitled to succeed to and
administer the entire estate of the Deceased in accordance with the laws of
Intestate Succession and that the Defendants be restrained, by an Order of
permanent injunction, from, directly and/ or indirectly, dealing with,
transferring, creating third party rights, alienating and/ or otherwise
disposing of the properties and assets forming part of the estate of the
Deceased.
5. The Deceased’s husband, Mohan Mooljee Sicka, passed away on
1st March 1997. The Deceased had made a previous Will dated 16 th August
2016. According to the Plaintiff, he had good relations with the Deceased.
The same was interalia demonstrated by the Deceased hosting a party at
Willingdon Club for Duenka Advani, i.e. the Plaintiff’s wife, showing the close
family bond. Further, the Plaintiff and the Deceased teamed up and won a
bridge tournament at Bombay Gymkhana.
6. On 1st October 2022, the Deceased emailed the Plaintiff stating
that she was losing her concentration when reading or playing games on
desktop/ Ipad and her memory had taken a ride.
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7. On 26th January 2023, the Deceased suffered a stroke. One Dr.
Karishma Jethmalani addressed an email dated 3rd March 2023 to the
Plaintiff whereby she attached the Deceased’s neuro-psychological
evaluation. The said email interalia stated the Deceased was experiencing
significant cognitive difficulties in multiple areas, including memory, word
finding and visuospatial functions, as a consequence of the stroke.
8. On 28th March 2023, the Deceased transferred an amount of
Rs.5,00,000/- to the Plaintiff as a gift.
9. On 10th April 2023, the Deceased executed a Will. In the said
Will, the Deceased appointed Defendant No.1 as the Executrix. The said Will
also stated that the Deceased had given her entire inheritance from her
mother to the Plaintiff and, hence, was not leaving anything for him in the
Will and that the Plaintiff had no rights to claim anything. This Will, which is
disputed by the Plaintiff, makes bequests to various persons, including
Defendant No.1.
10. On 25th April 2023, Dr.Karishma Jethmalani addressed an email
to the Plaintiff attaching the follow up of the Neuropsychological evaluation
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findings of the Deceased. The said report stated that following six sessions of
treatment, there had been a notable improvement in the Deceased’s
registration, executive and visuospatial functions. However, her naming
ability and free recall (particularly delayed verbal memory) had not improved
as expected. The said report further stated that, as a result, the Deceased
had been referred to a speech therapist for further intervention and
management of her naming difficulties. The report stated that continued
follow-up and monitoring would be required to assess the Deceased’s
progress and make appropriate adjustments to her treatment plan.
11. On 30th May 2023, 1st June 2023 and 20th December 2023, the
Plaintiff addressed emails to the Deceased fixing doctors’ appointments for
her.
12. The Deceased executed a Gift Deed dated 6 th May 2024 in favour
of Defendant No.1 whereby the Deceased gifted to Defendant No.1 residential
Flat no. I-B on the 1 st floor of the building known as Shanaz, in Nepean Sea
Co-operative Housing Society Ltd, Plot No.90, Napean Sea Road, Mumbai
400 006. This Gift Deed is also disputed by the Plaintiff.
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13. According to the Plaintiff, on 15th July 2024, a cheque of Rs.5
Crores was deposited in the joint account of the Deceased and the Plaintiff on
the oral understanding that the interest on the said sum of Rs.5 Crores would
be enjoyed by the Deceased with the principal amount accruing to the
Plaintiff on the demise of the Deceased.
14. On 15th July 2024 itself, there was reversal of the said Rs.5
Crores from the Joint Account of the Deceased and the Plaintiff to the Joint
Account of the Deceased and Defendant No.1. According to the Plaintiff, this
was at the instance of Defendant No.1.
15. According to the Plaintiff, on 16th July 2024, there was a transfer
of Rs.5 Crores from the sole account of the Deceased to the Joint Account of
the Deceased and the Plaintiff. On 29th July 2024 again, there was a reversal
of Rs.5 Crores from the Joint Account of the Deceased and the Plaintiff to the
Joint Account of the Deceased and Defendant No.1. Again it is the contention
of the Plaintiff that this was done at the instance of Defendant No.1.
16. In May 2025, the Deceased was admitted to the Masina Hospital,
Byculla and later shifted to the ICU. On 31 st May 2025, the Deceased passed
away.
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17. On 31st May 2025 itself, a transfer of Rs.10 lacs was made from
the Deceased’s sole account to Mukesh Atmaram, being the amount
bequathed to Mukesh Atmaram under the Will dated 10 th April 2023.
18. On 10th June 2025, a payment of Rs.11 lacs was made to a
religious trust, namely, Shri Sai Baba Sansthan Trust, Shirdi, by debiting the
sole account of the Deceased after her death. This bequest did not form a
part of the Will of the Deceased.
19. In these circumstances, the Plaintiff filed the present Suit and
Interim Application on 26th August 2025.
20. On 30th August, 2025, a Probate Petition was filed by Defendant
No.1 seeking Probate of the Will dated 10th April 2023 of the Deceased.
21. Defendant No.1 filed an Affidavit in Reply dated 15 th September
2025 to the Interim Application. Plaintiff filed an Affidavit in Rejoinder
dated 19th September 2025. Thereafter, Defendant No.1 filed an Additional
Affidavit in Reply dated 22nd September 2025 and a Compilation of
Documents dated 8th October 2025.
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22. Various arguments were advanced by the Counsel for the
Plaintiff and Defendant No.1. Written submissions were also filed on behalf
of the Plaintiff and Defendant No.1. On 17 th October 2025, the matter was
reserved for Judgement.
23. Defendant No.1 obtained a Probate of the Will dated 10 th April
2023 of the Deceased on 7th March 2026.
24. By a further Additional Affidavit dated 17 th March 2026,
Defendant No.1 put on record the said Probate obtained by her.
25. In the light of the same, by an Order dated 2 nd April 2026, this
Court placed the matter on 9th April 2026, in order to consider the
implications of this Probate on the pending Interim Application. On 9 th April
2026, the Counsel appearing on behalf of the Plaintiff and Defendant No.1,
made submissions on the implication of the Probate on the pending Interim
Application and the Judgement was reserved.
SUBMISSIONS OF DEFENDANT NO.1 ON MAINTAINABILITY OF THE
SUIT BY THE PLAINTIFF
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26. Mr.Nirman Sharma, the learned counsel appearing on behalf of
Defendant No.1, submitted that in a suit for administration of estate of a
Deceased, it is imperative for a Plaintiff, as a matter of fact and law, to clearly
establish a share/entitlement in the estate of the Deceased in accordance with
provisions of law, which in this case is the Hindu Succession Act, 1956 (“the
HSA”). Mr.Sharma submitted that, if the Plaintiff fails to establish a share
even at the stage of final hearing of the Interim Application, there was no
question of interim reliefs being granted. Grant of such interim reliefs would
necessarily operate till the final hearing of the Administration Suit in this
Court, which would amount to defeating the statute of succession.
Mr.Sharma submitted that, in the present case, even if the registered Gift
Deed and the registered Will are ignored, the Plaintiff would still not be able
to make out a case for interim relief.
27. Mr.Sharma submitted that the contention of the Plaintiff in
relation to the action of the Executrix can be permitted to be raised only if the
Plaintiff is able to establish a share/entitlement in accordance with Section 15
of the HSA. Without this requirement being fulfilled, permitting a party to
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level allegations against the actions of an Executrix, would amount to
granting a back door entry, which is impermissible.
28. On the Plaintiff’s lack of entitlement under the HSA, Mr.Sharma
submitted that, for intestate succession of a female Hindu, such as the
Deceased, Sections 14 to 16 of the HSA apply.
29. Mr.Sharma submitted that Section 15(1) of the HSA provides
that the property of a female Hindu dying intestate would devolve, according
to the rules set out in Section 16, firstly, upon the sons and daughters
(including the children of any pre-deceased son or daughter) and the
husband. Secondly, upon the heirs of the husband. Thirdly, upon the
mother and father. Fourthly, upon the heirs of the father, and lastly, upon
the heirs of the mother.
30. Mr.Sharma submitted that, in the present case, the Deceased
had no children, and her husband, Mr. Mohan Sicka, pre-deceased her. Her
husband’s sister, Mrs. Shridevi Ruparel, survived her. Therefore, the
Deceased’s husband’s sister, Mrs. Ruparel, falls under entry ‘b’, of Section
15(1) i.e. heir of the husband. Mrs. Ruparel has given an Consent
Affidavit/Affidavit in Support of the Probate Petition filed by Defendant No.1.
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31. On the other hand, the Plaintiff falls under entry ‘d’ of Section
15(1), i.e. heirs of the father of the Deceased. Mr.Sharma submitted that, as
per Section 16, the heirs in the earlier entries exclude those in the subsequent
entries in Section 15(1). Therefore, the Deceased’s husband’s sister, Mrs.
Shridevi Ruparel, who is at entry ‘b’, excludes the Plaintiff who is at entry ‘d’.
Mr.Sharma submitted that this makes it clear that, by virtue of Section 15(1)
of the HSA, the Plaintiff has no entitlement to the Deceased’s property.
32. Mr.Sharma next submitted that, in response to the argument of
Defendant No.1 that the Plaintiff has no entitlement under Section 15(1) of
the HSA, the Plaintiff has sought to rely on the Judgement of a Single Judge
of this Court in Mamta Dinesh Vakil v. Bansi S. Wadhwa (2012) SCC Online
Bom 1685 to argue that Section 15(1) has been declared unconstitutional.
Mr.Sharma submitted that this argument of the Plaintiff is incorrect:
33. Mr.Sharma submitted that a reference to paragraph 218 of the
decision in Mamta Dinesh Vakil (Supra) records that the Hon’ble Chief
Justice had directed the Court to decide the issues in the suits relating to the
Constitutional validity of the relevant provisions with a rider that if they are
to be declared as unconstitutional by a Single Judge, the issue is to be
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referred to the Division Bench of this Court. Mr.Sharma submitted that the
issue of constitutionality in both suits was therefore referred to the Division
Bench of this Court.
34. Further, Mr.Sharma submitted that, in the reference made by
the learned Single Judge to the Division Bench, the Division Bench held that
it would not be necessary to decide the said issue of constitutional validity of
Section 15 of the HSA. The net result is that the Division Bench did not give
any findings to the effect that Section 15(1) is unconstitutional.
35. Mr.Sharma submitted that, in these circumstances, Section 15(1)
of the HSA has not been declared unconstitutional. Mr.Sharma further
submitted that the same continues to be applied even by the Hon’ble
Supreme Court and, in this context, referred to the following Judgements:
(i) Subhas Chandr Das vs Ganga Prasad (1966 SCC Online SC 103)
(ii) Arunachala Gounder vs. Ponnusamy [(2022) 11 SCC 520]
(iii) Dhani Ram vs. Shiv Singh (2023 SCC Online SC 1263)
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(iv) Sachidhanandam vs. E. Vanaja (2023 SCC Online SC 1448)
36. At the hearing held on 9th April 2026, Mr.Sharma referred to the
Order of the Hon’ble Supreme Court in Snidha Mehra vs. Union of India &
Ors. (in Writ Petition (Civil) Nos.732 of 2020). Mr.Sharma submitted that,
by the said Order, the Hon’ble Supreme Court did not entertain the Petition
challenging the validity of Section 15(1)(b) of the HSA as the Writ Petition
was filed purely as a Public Interest Litigation and left the question open.
37. In these circumstances, Mr.Sharma submitted that Section 15(1)
is constitutional and makes it clear that the Plaintiff has no entitlement to the
property of the Deceased.
38. Mr.Sharma then relied upon Section 15(2) of the HSA.
Mr.Sharma submitted that the Plaintiff had argued inapplicability of Section
15(1) of the HSA but has advanced no submissions on the applicability of
Section 15(2) of the HSA, which stands independent of Section 15(1).
Mr.Sharma submitted that Section 15(2) provides specific rules for inherited
property and the Plaintiff’s argument regarding constitutionality of Section
15(1) does not extend to Section 15(2).
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39. Mr.Sharma submitted that Section 15(2)(a) provides that the
property inherited from the father or mother devolves upon the heirs of the
father (if the Deceased had no children). He further submitted that Section
15(2)(b) provides that the property inherited from the husband or father-in-
law devolves upon the heirs of the husband (if the Deceased had no children).
40. Mr.Sharma submitted that, therefore, Section 15(2) provides
that if the property of a female Hindu dying intestate is not self-acquired, it
would revert to the source i.e. the heirs of the father, mother or husband from
whom the Deceased acquired the properties.
41. Mr.Sharma submitted that, in the present case, the properties of
the Deceased were acquired through her husband. Therefore, Section 15(2)
(b) applies here, further negating the Plaintiff’s claim.
SUBMISSIONS OF THE PLAINTIFF ON THE MAINTAINABILITY OF THE
SUIT BY THE PLAINTIFF
42. Mr.Haresh Jagtiani, the learned Senior Counsel appearing on
behalf of the Plaintiff, submitted that there was no merit in fact and in law in
Defendant No. 1’s submission that the Plaintiff lacked caveatable interest.
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43. Mr.Jagtiani submitted that Section 15(1) of the HSA has been
held as unconstitutional by a coordinate bench of this Court in Mamta Dinesh
Vakil (Supra). He submitted that the said finding has not been overruled by a
subsequent Judgement, including the Appeal Court Order disposing of the
Appeal therefrom.
44. Further, Mr.Jagtiani submitted that the 207th Report of the Law
Commission of India had recommended that Section 15 of the Hindu
Succession Act be modified to give precedence to the Hindu female’s natal
heirs over her husband’s heirs.
45. Mr.Jagtiani also submitted that the Hon’ble Supreme Court is
seized of a vires challenge to Section 15 of the HSA having taken cognizance
of the matter, despite inter se settlement between the litigants, given the
importance of the issues involved.
46. Mr.Jagtiani submitted that the upshot of this discussion is that
there is a strong possibility that the order of succession set out in Section 15
of the Hindu Succession Act will be declared unconstitutional in as much as it
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discriminates on the basis of sex. Mr.Jagtiani submitted that, if so, the
Plaintiff will be the sole surviving heir of the Deceased, being her sibling.
47. Next, Mr.Jagtiani referred to the Judgement of this Court in
Induben Jethalal Nagrecha vs. Jagjivandas Shamji Suchak 2024 SCC OnLine
Bom 2823 wherein this Court held that a caveatable interest may be a wide
one. Further, this Court held that what would be a caveatable interest would
depend on the facts of a case and no hard and fast rule can be laid down.
Mr.Jagtiani further submitted that the said Judgement laid down that a
caveatable interest can be maintained where there is a possibility of
inheritance of property by intestate succession.
48. Mr.Jagtiani submitted that the Plaintiff is certainly a potential
heir if the Order of succession set out in Section 15 of the HSA is held ultra
vires, as has been done by a coordinate bench of this Court in Mamta Dinesh
Vakil (Supra).
49. Mr.Jagtiani further submitted that the argument of Defendant
No. 1, that the absence of a caveatable interest amounts to non-disclosure of a
cause of action, is the exclusive remit of an application under Order VII Rule
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11 of the Code of Civil Procedure, 1908 (“CPC“) However, an Application
under Order VII Rule 11 of the CPC has not been preferred as yet.
50. Further, Mr.Jagtiani submitted that a plain reading of Rule 397
of the Bombay High Court (Original Side) Rules, 1980 makes it mandatory
on the part of the executor propounding a will to serve a citation on the heirs
and next of kin of the Deceased, which in this case is the Plaintiff.
51. Mr.Jagtiani further submitted that the phrase ‘next of kin’
admits of no ambiguity and is advisedly a term of wider import than heir.
Mr.Jagtiani submitted that the only person who answers this description is
the Plaintiff.
52. Further, Mr.Jagtiani submitted that the language of Section 15 of
the HSA makes it clear that the Section only applies to property inherited by
the Deceased female Hindu through intestacy. If the property is inherited by
‘devise’ i.e. a testamentary instrument, or by virtue of possession, Section 15
will have no application. This is because Section 14 contemplates an absolute
ownership by a Hindu female, which concept is not captured in Section 15 of
the HSA.
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53. Mr.Jagtiani submitted that a harmonious construction of
Sections 14 and 15 of the HSA must lead to the conclusion that the operation
of Section 15 is limited to intestate succession by a Deceased female Hindu
and not where she inherits property in the manner contemplated under
54. Mr.Jagtiani submitted that, therefore, the Plaintiff undoubtedly
has a caveatable interest under Rule 397 of the Bombay High Court (Original
Side) Rules as a next of kin of the Deceased.
55. Further, Mr.Jagtiani submitted that there is a real and strong
possibility that, assuming that Section 15 is applicable, the provision may be
held to be unconstitutional and, therefore, the Plaintiff would be the sole
surviving legal heir of the Deceased.
56. Finally, Mr.Jagtiani submitted that the Judgement in Mamta
Dinesh Vakil (Supra) currently holds the field at least as far as this Court is
concerned and this Court ought not to pass a ruling which would disturb the
ratio and findings of this Judgement, keeping in mind the doctrine of stare
decisis.
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ANALYSIS AND FINDINGS ON MAINTAINABILITY OF THE SUIT BY THE
PLAINTIFF
57. I have heard the arguments of the learned counsel for the
parties. In my view, the question that arises in the present case is that if the
Deceased had died intestate, whether the Plaintiff would have an interest in
the estate of the Deceased.
58. Sections 15 and 16 of the HSA read as under:
“15. General rules of succession in the case of female
Hindus.―(1) The property of a female Hindu dying intestate
shall devolve according to the rules set out in section 16,―
(a) firstly, upon the sons and daughters (including the children
of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),―
(a) any property inherited by a female Hindu from her father or
mother shall devolve, in the absence of any son or daughter of
the Deceased(including the children of any pre-deceased son or
daughter) not upon the other heirs referred in sub-section (1) in
the Order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband
or from her father-in-law shall devolve, in the absence of any
son or daughter of the Deceased (including the children of any
pre-deceased son or daughter) not upon the other heirs referred
to in sub-section (1) in the Order specified therein, but upon the
heirs of the husband.
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16. Order of succession and manner of distribution among heirs
of a female Hindu.―The Order of succession among the heirs
referred to in section 15 shall be, and the distribution of the
intestate’s property among those heirs shall take place
according to the following rules, namely:―
Rule 1.―Among the heirs specified in sub-section (1) of section
15, those in one entry shall be preferred to those in any
succeeding entry, and those included in the same entry shall take
simultaneously.
Rule 2.―If any son or daughter of the intestate had pre-
deceased the intestate leaving his or her own children alive at
the time of the intestate’s death, the children of such son or
daughter shall take between them the share which such son or
daughter would have taken if living at the intestate’s death.
Rule 3.―The devolution of the property of the intestate on the
heirs referred to in clauses (b), (d) and (e) of sub-section (1)
and in sub-section (2) of section 15 shall be in the same Order
and according to the same rules as would have applied if the
property had been the father’s or the mother’s or the husband’s
as the case may be, and such person had died intestate in
respect thereof immediately after the intestate’s death.”
59. Section 15(1) provides that the property of a female Hindu dying
intestate would devolve:
(a) First, upon sons and daughters (including children of pre-
deceased children) and husband.
(b) Secondly, upon the heirs of the husband.
(c) Thirdly, upon the mother and father.
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(d) Fourthly, upon the heirs of the father, and
(e) Lastly, upon the heirs of the mother.
60. In the present case, the Deceased had no children, and her
husband, Mr. Mohan Sicka, pre-deceased her. The Deceased’s husband’s
sister, Mrs. Shridevi Ruparel, survived her. Therefore, the Deceased’s
husband’s sister, Mrs. Ruparel, falls under entry ‘b’ of Section 15(1) i.e. heir of
the husband of the Deceased.
61. As per Section 16 of the HSA, the heirs in the earlier entries
exclude those in the subsequent entries. In these circumstances, the
Deceased’s husband’s sister, Mrs. Shridevi Ruparel, who falls in entry ‘b’,
excludes the Plaintiff who falls in entry ‘d’ of Section 15(1). This makes it
clear that, by virtue of the provisions Section 15(1), the Plaintiff has no
entitlement to the Deceased’s property at intestacy. For the aforesaid
reasons, if the Deceased had died intestate, the Plaintiff would not have an
interest in the estate of the Deceased.
62. Faced with this situation, it is the case of the Plaintiff that, in
Mamta Dinesh Vakil (Supra), a Single Judge of this Court has held that
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Section 15(1) of the HSA is violative of Article 15(1) of the Constitution of
India. I am unable to accept this submission. In Mamta Dinesh Vakil
(Supra), in paragraph 211, the Court held as under:
“211. The issue relating to constitutional Validity in both the
above suits are answered in the affirmative to declare Sections
8(b) (c) and (d) r/w the Class II of the Schedule of the HSA as
also Section 15(1) of the HSA unreasonable as discriminatory
and, therefore, unconstitutional and ultravires as being violative
of Article 15(1) of the Constitution of India.”
63. However, in paragraphs 216, 218 and 219, the Court held as
under:
“216. However, until the Constitutional Validity of Section 15(1)
is finally determined by the Division Bench of this Court, the
estate of the Deceased cannot be depleted.
218. The Honourable Chief Justice directed this Court to decide
the issues in the above suits relating to Constitutional Validity of
the aforesaid provisions with a rider that if they are to be
declared unconstitutional by this Court as a single Judge, the
issue be referred to the Division Bench of this Court. The issue
of constitutionality in both the above suits, shall, therefore be
referred to the Division bench of this Court.
219. The Prothonotary and Senior Master of this Court as also
any party may place the Suits before the Honourable Chief
Justice for assignment of the suits to a Division Bench of this
Court for consideration of the issues relating to the
Constitutional Validity.”
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64. This clearly shows that the issue of constitutionality of Section
15(1) has to be decided by a Division Bench of this Court and, till then,
Section 15(1) cannot be held as unconstitutional.
65. The reference made by the learned Single Judge in Mamta
Dinesh Vakil (Supra), to the Division Bench did not result in a finding of
Section 15(1) being unconstitutional. In the said Appeal, the Division Bench
held as follows:
” Since in the present case the Will has been executed in favour
of the daughter of sister of the deceased, the issue raised in the
connected Petition will not apply to the facts of the present case
and it will not be necessary to decide the said issue of validity of
Section 15 of the Hindu Succession Act. Hence, stand over to
18th March, 2015 at 4:00 p.m.”
66. The result of this is that the Division Bench did not give any
findings to the effect that Section 15(1) is unconstitutional.
67. Further, in the following Judgements, which were rendered after
the decision of the Single Judge of this Court in Mamta Dinesh Vakil (Supra),
the Hon’ble Supreme Court has referred to Section 15(1) of the HSA. The
Judgements are as follows:
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(i) Arunachala Gounder vs. Ponnusamy [(2022) 11
SCC 520]
(ii) Dhani Ram vs. Shiv Singh (2023 SCC Online SC
1263)
(iii) Sachidhanandam vs. E. Vanaja (2023 SCC Online
SC 1448)
68. Further, in an Order dated 19 th November 2025 passed by the
Hon’ble Supreme Court, in Snidha Mehra (Supra), the Hon’ble Supreme
Court held that the Court did not wish to entertain the Petition to consider
the validity of Section 15(1)(b) of the HSA as this Writ Petition was filed
purely as a Public Interest Litigation. This also shows that Section 15(1) has
not been declared unconstitutional.
69. For the aforesaid reasons, by virtue of the provisions of Sections
15 and 16 of the HSA, if the Deceased had died intestate, then the Plaintiff
would not have had any interest in the estate of the Deceased. In these
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circumstances, the reliefs sought by the Plaintiff in the Interim Application
cannot be granted.
70. As far as the submission of Mr.Jagtiani on the 207 th Report of
the Law Commission of India is concerned, Mr.Jagtiani has relied upon the
following extract from the said report.
“5.6 … Accordingly, it is urged that Section 15(1) should be
modified to ensure that the general Order of succession does not
place a woman’s husband’s heirs above those who belong to her
natal family like her father and mother and thereafter her
brother and sister. It is contended that when a man dies
intestate, his wife’s relatives do not even figure in the Order of
succession despite the manner in which he may have acquired
the property. In view of this, parity is sought in the case of
female by applying the same rules as applicable to male’s
property.
[…]”
71. It is Mr.Jagtiani’s submission that the Law Commission of India
had recommended that Section 15 of the HSA be modified to give precedence
to the Hindu female’s natal heirs over her husband’s heirs. In my view, it is
true that such a recommendation has been given by the Law Commission.
However, the said recommendation has not been implemented by the
legislature and Section 15(1) has not been amended to bring about the
changes suggested by the Law Commission. In these circumstances, the 207 th
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Report of the Law Commission of India cannot carry the case of the Plaintiff
any further.
72. Further, as stated hereinabove, Mr.Jagtiani has submitted that,
if Defendant No.1 wanted to submit that the Plaintiff had no caveatable
interest, then Defendant no.1 should have filed an Application under Order
VII Rule 11 of the CPC. I am afraid that I am unable to accept this submission
of Mr.Jagtiani. In an administrative suit, the burden is on the Plaintiff to
show that he / she has an interest in the estate of the Deceased. Similarly, in
the Interim Application also, the Plaintiff would have to prima facie show
that he has an interest in the estate of the Deceased. If in the Interim
Application, the Plaintiff is unable to show prima facie that he/she has an
interest in the estate of the Deceased, then the Court would not be inclined to
grant any interim reliefs in favour of the Plaintiff.
73. For the aforesaid reasons, in the present case, the burden was on
the Plaintiff to show that, if the Deceased died intestate, then the Plaintiff
would have an interest in the estate of the Deceased. In my view, the Plaintiff
has failed to show any such interest in the estate of the Deceased. In these
circumstances, the Plaintiff would not be entitled to any reliefs in the present
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Interim Application and it is not at all necessary for Defendant No.1 to file an
Application under Order VII Rule 11 of the CPC.
74. The other argument of Mr.Jagtiani is that Rule 397 of the
Bombay High Court (Original Side) Rules, 1980 makes it mandatory on the
part of the executor propounding the Will to serve a citation on the heirs and
next of kin of the Deceased, which in this case is the Plaintiff.
75. In my view, since the Plaintiff would not have any interest in the
estate of the Deceased if the Deceased died intestate, the Plaintiff would not
fall within the definition of heirs or next of kin in Rule 397. For this reason,
this submission of Mr.Jagtiani also cannot be accepted.
76. In the light of my aforesaid findings, I have not dealt with all the
other arguments of the Plaintiff and Defendant No.1 and the Judgements
cited by them in support thereof as set out in their respective Written
Submissions.
77. Further, there is one more reason as to why the Plaintiff cannot
get any relief in this Interim Application. Defendant No.1 disclosed the
Probate Petition filed by her for Probate of the Will dated 10 th April 2023 of
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the Deceased in her Affidavit in Reply dated 15 th September 2025. The
Plaintiff did not file any Caveat in those proceedings. Further, by a Further
Additional Affidavit dated 17th March 2026, Defendant No.1 disclosed that, on
7th March 2026, this Court had granted a Probate of the Will dated 10 th April
2023 of the Deceased to Defendant No.1. The Probate granted to Defendant
No.1 is authenticated evidence of the Will from which Defendant No.1 derives
her title and by virtue of which the property of the Deceased vests in her from
the death of the Deceased. For these reasons also, the Plaintiff would not be
entitled to any of the reliefs sought in the Interim Application.
78. In this context, Mr.Jagtiani submitted that the Plaintiff had no
chance to oppose the grant of the Probate as the issue of caveatable interest
was involved and that the Plaintiff has filed a Petition for revocation of the
Probate. The fact that the Plaintiff did not file a caveat, is, in my view, an
admission on the part of the Plaintiff that he does not have a caveatable
interest in the estate of the Deceased. As far as the Petition filed for
revocation of the Probate is concerned, the same will be decided by the
Testamentary Court on its merits. The same does not entitle the Plaintiff to
any interim relief in the present Interim Application.
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79. Mr.Jagtiani has also submitted that since the Suit was filed
before the Probate was obtained, the subsequent event would make no
difference to the reliefs being sought in the present Interim Application.
Again, I am afraid that I am unable to agree with the said submission of
Mr.Jagtiani. As held by me hereinabove, as a result of the granting of the
Probate, the property of the Deceased vested in Defendant No.1 from the date
of death of the Deceased. Therefore, unless and until the Probate is revoked,
the interim reliefs sought in the present Interim Application cannot be
granted to the Plaintiff.
80. Next, Mr.Jagtiani submitted that, prior to Defendant No.1 filing
the Probate Petition, she had approached the Plaintiff for his Consent
Affidavit giving consent to the Probate being granted to Defendant No.1.
Mr.Jagtiani stated that this fact has not been mentioned in the Probate
Petition. Mr.Jagtiani further submitted that the Probate court had not been
informed about the present Administrative Suit. He submitted that this
shows that the Probate has been obtained fradulently and is vitiated by fraud,
and therefore the same cannot come in the way of this Court granting reliefs
in the present Interim Application. Again, I am unable to accept the
submission of Mr.Jagtiani. In my view, just because the Probate Petition
does not refer to the fact of consent being sought from the Plaintiff and the
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same being refused and does not refer to the present Administrative Suit, the
same does not mean that the Probate has been obtained by fraud. These two
facts are not essential facts to be pleaded in the Probate Petition.
81. Mr.Jagtiani also referred to paragraph 10 of the Probate Petition
and submitted that there had been an amendment to increase the estate to
Rs.40 Crores. In my view, the same also does not vitiate the Probate. The
Probate Court has granted the Probate as amended.
82. Mr.Jagtiani also referred to paragraph 50 of the Judgement of
the Hon’ble Supreme Court in Asma Lateef and Anr. vs. Shabbir Ahmad and
Ors (2024) 4 SCC 696 which reads as under:
“50. Although not directly arising in the present case, we also
wish to observe that the question of jurisdiction would assume
importance even at the stage a court considers the question of
grant of interim relief. Where interim relief is claimed in a suit
before a civil court and the party to be affected by grant of such
relief, or any other party to the suit, raises a point of
maintainability thereof or that it is barred by law and also
contends on that basis that interim relief should not be granted,
grant of relief in whatever form, if at all, ought to be preceded by
formation and recording of at least a prima facie satisfaction
that the suit is maintainable or that it is not barred by law. Such
a satisfaction resting on appreciation of the averments in the
plaint, the application for interim relief and the written objection
thereto, as well as the relevant law that is cited in support of the
objection, would be a part of the court’s reasoning of a prima
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cause irreparable harm and prejudice. It would be inappropriate
for a court to abstain from recording its prima facie satisfaction
on the question of maintainability, yet, proceed to grant
protection pro tem on the assumption that the question of
maintainability has to be decided as a preliminary issue under
Order 14 Rule 2 CPC. That could amount to an improper
exercise of power. If the court is of the opinion at the stage of
hearing the application for interim relief that the suit is barred
by law or is otherwise not maintainable, it cannot dismiss it
without framing a preliminary issue after the written statement is
filed but can most certainly assign such opinion for refusing
interim relief. However, if an extraordinary situation arises
where it could take time to decide the point of maintainability of
the suit and non-grant of protection pro tem pending such
decision could lead to irreversible consequences, the court may
proceed to make an appropriate Order in the manner indicated
above justifying the course of action it adopts. In other words,
such an Order may be passed, if at all required, to avoid
irreparable harm or injury or undue hardship to the party
claiming the relief and/or to ensure that the proceedings are not
rendered infructuous by reason of non-interference by the court.”
83. In my view, paragraph 50 supports the view taken by me in this
Judgement. In paragraph 50, the Court has stated that where interim relief
is claimed in a suit before a civil court and the party to be affected by grant of
such relief, or any other party to the suit, raises a point of maintainability
thereof, or that it is barred by law, and also contends on that basis that
interim relief should not be granted, grant of relief in whatever form, if at all,
ought to be preceded by formation and recording of at least a prima facie
satisfaction that the suit is maintainable or that it is not barred by law. The
Hon’ble Supreme Court has further held that it would be inappropriate for a
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court to abstain from recording its prima facie satisfaction on the question of
maintainability.
84. Applying these principles to the present case, since on the basis
of Section 15(1) of the HSA, I have come to the conclusion that, even if the
Deceased had died intestate, the Plaintiff would not have any interest in the
estate of the Deceased, the same does entitle the Plaintiff to interim relief.
85. Further, in paragraph 50 of the said Judgement, it has been held
that if an extraordinary situation arises where it could take time to decide the
point of maintainability of the suit and non-grant of protection pro tem
pending such decision could lead to irreversible consequences, the Court may
proceed to make an appropriate order in the manner indicated above
justifying the course of action it adopts. In other words, such an order may be
passed, if at all required, to avoid irreparable harm or injury or undue
hardship to the party claiming the relief and/or to ensure that the
proceedings are not rendered infructuous by reason of non-interference by
the court. Since, I have decided the issue of maintainability, the aforesaid
findings of the Hon’ble Supreme Court would not be applicable to the present
case. In these circumstances, the Judgement in the case of Asma Lateef and
Anr. (Supra), does not carry the case of the Plaintiff any further.
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Order
86. In the light of the aforesaid discussion and for all the aforesaid
reasons, the following Order is passed:
a. Interim Application (L) No.26854 of 2025 is
rejected.
b. In the facts and circumstances of the case, there will
be no Order as to costs.
[FIRDOSH P. POONIWALLA, J.]
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