MAMTA DINESH VAKIL Vs. BANSI S. WADHWA

JUDGEMENT

(1.) Both the aforesaid suits relate to the letters of administration and probate of the Will of a deceased Hindu who died leaving distant heirs. The deceased in Suit No.48 of 2005 is a male Hindu. The deceased in Suit No.86 of 2000 is a female Hindu. The Plaintiff in Suit No.48 of 2005 claims to be the paternal aunt of the deceased. Her claim of relationship is not admitted. The defendant/Caveatrix in Suit No.48 of 2005 is the maternal aunt of the deceased. Her relationship is not challenged. The Plaintiff in Suit No. 48 of 2005 claims to be an heir nearer in the line of succession to the deceased than the Defendant/Caveatrix who is the maternal aunt of the deceased. She claims to fall in Item VII of Class II of the Schedule to Section 8 of the Hindu Succession Act. She claims to exclude the maternal aunt who is shown to fall under Item IX of Class II of the Schedule to Section 8 of the Hindu Succession Act (HSA).

(2.) The Defendant filed her Caveat and challenged the relationship of the Plaintiff and also the Constitutional Validity of the aforesaid items of the Hindu Succession Act as being unreasonable and discriminatory as giving preference to the father's relatives over the mother's relatives. She has claimed that under Sections 8 and 15 of the HSA, which deal with the properties of Hindu males and Hindu females dying intestate respectively, are gender discriminatory.

(3.) She has also claimed that Section 8 of the HSA is discriminatory as it does not make any distinction between properties acquired by a deceased male from his father and his relatives or from his mother and her relatives. She claims discrimination on the ground that the source of the estate of the deceased Hindu male is not seen under Section 8 of the HSA as the source of the estate of a deceased female Hindu is seen under Section 15 of the HSA. Based upon the pleadings between the parties following issues came to be framed: <p><table class = tablestyle width="900" border="0" align="center" cellpadding="0" cellspacing="0" style="font-family:Verdana"> <tr> <td colspan="2"><div align="center"><b>ISSUES</b></div></td> </tr> <tr> <td width="79">&nbsp;</td> <td width="821">&nbsp;</td> </tr> <tr> <td><div align="center">1 </div></td> <td>Whether the plaintiff proves that she is the paternal aunt of the deceased.</td> </tr> <tr> <td>&nbsp;</td> <td>&nbsp;</td> </tr> <tr> <td valign="top"><div align="center">2 </div></td> <td><div align="justify">Whether the plaintiff is entitled to claim beneficial interest under the will of late Shri Hargovind Raja without probate being granted of such will.</div></td> </tr> <tr> <td>&nbsp;</td> <td>&nbsp;</td> </tr> <tr> <td valign="top"><div align="center">3 </div></td> <td><div align="justify">Whether the plaintiff proves that the properties mentioned in the Schedule to the petition belonged to the deceased.</div></td> </tr> <tr> <td>&nbsp;</td> <td>&nbsp;</td> </tr> <tr> <td valign="top"><div align="center">4 </div></td> <td><div align="justify">Whether Entry 7 of class II of the Schedule to the Hindu Succession Act is unconstitutional and unreasonable.</div></td> </tr> <tr> <td>&nbsp;</td> <td>&nbsp;</td> </tr> <tr> <td valign="top"><div align="center">5 </div></td> <td><div align="justify">Whether the persons brought on record as legal heirs are in fact legal heirs of the deceased the original Plaintiff.</div></td> </tr> </table>