M.KARPAGA VINAYAGAM, J. - (1.) FAIZ Murtaza All has filed a Caveat under Rules 126 and 127 of the Jharkhand High Court Rules, seeking leave to contest the probate proceedings pending. The learned Single Judge, by the order dated 4.1.2008, dismissed the same on the ground that the petitioner -appellant has no caveatable interest. This is under challenge in this Letters Patent Appeal.
(2.) ACCORDING to the learned Counsel appearing for the appellant, the learned Single Judge has not properly considered Section 88 of the Mahomedan Law and ultimately he has given a wrong finding that the petitioner has no caveatable interest. It is contended by the learned Counsel for the petitioner -appellant that the appellant being the son of the brother of the mother of the testatrix is entitled to inherit the estate of the mother of the testatrix since the testatrix predeceased her mother and there is no one under category I and the appellant comes under category II and as such, he has interest in the property. We have heard the learned Counsel for the respondents.
(3.) THERE is no dispute in the fact that the Caveator is the son of late Murtaza Fazal All, who was the brother of Syeda Mehndi Imam, the mother of the testatrix. The Will produced praying for probating would indicate that Shamim Amna Imam has bequeathed the properties in question to Syed Askari Hadi Ali, petitioner No. 1 in the Testamentary Case, who is her own uncle and Syed Hasan Francis Imam is the son of the petitioner No. 1. It is strenuously contended by the learned Counsel for the appellant -caveator that as per Section 88 of the Mahomedan Law, caveator also has got interest in the property.;