1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 47 OF 2010 IN TESTAMENTARY SUIT NO. 9 OF 2008 IN TESTAMENTARY PETITION NO. 707 OF 2008 Mrs. Sarayu Ahuja .. Plaintiff V/s Mrs. Leela Naidu Moraes .. Defendant Mr. Vatsal Shah i/b Advani & Co. for the plaintiff. Ms. Shweta Doshi i/b Rustomji Ginwala & Co. for the defendant. CORAM : D.G. KARNIK, J. DATE : 30th APRIL 2010 P.C. : 1. By this chamber summons, the plaintiff prays for a direction that the caveat filed by the original defendant has lapsed or in the alternative to serve the unnamed heirs of the caveator-defendant by a public notice. 2. The plaintiff has filed the petition for probate of the last will and testament dated 5th June 2002 of late Mr. Dominic Anthony Francis Moraes @ Dom Moraes (for short “the deceased”) who expired on 2nd June 2004. The caveator- defendant filed caveat claiming to be the wife of the deceased 2 opposing to grant of probate. She disputed the Will and claimed that she had inherited the property being the wife of the deceased. In view of the caveat, the testamentary petition was converted into testamentary suit and the caveator was arrayed as a defendant. 3. During the pendency of the testamentary suit, the caveator has died. If the caveator had caveatable interest and claimed to have inherited the property. After her death, all her property including the property inherited by her from her husband would pass on to her heirs. The heirs of the caveator-defendant would therefore continue to have caveable interest in opposing the Will. The caveat cannot be dismissed and the heirs of the caveator-defendant would be required to be substituted in the testamentary suit. Unless the heirs are named and brought on record, there cannot be an order of service by public notice. Hence, the alternative prayer also cannot be granted. 4. For these reasons, the chamber summons is dismissed. The plaintiff is directed to bring the heirs of the deceased defendant on record. (D.G. KARNIK, J.)