1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO. 5094 OF 2009 Dunda Ramji Mhaskar & ors. .... Petitioners vs Nana Ramji Mhaskar & ors. .... Respondents Mr. R.S. Datar for the petitioners. Mr. P. J. Das i/by Dushyant S. Pagare for respondent no.1. Mr.Khandeparkar i/by M/s.Khandeparkar & Associates for respondents 2(1), 2(2), 2(3), 2(4). CORAM: ANOOP V. MOHTA, J. DATE : 23rd April, 2010 P.C.: 1 The matter is under the cation '"for disposal". 2 Rule, made returnable forthwith. Heard finally. 3 The petitioners/original defendant nos. 2 to 7, who failed to file written statement in a Suit for partition, yet relied upon their elder brother/defendant no. 1 to contest the matter on behalf of all. However, after getting knowledge that defendant no.1, elder brother has filed written statement and claimed the right over the ancestral exclusive property thereby depriving the present defendants 2 to 7 who are younger brothers, in this background, the petitioners moved this application to bring separate written statement on record, which was rejected on the sole ground that they failed to file written statement within the prescribed period. 4 In view of above facts itself and as the plaintiff has no objection and as the 2 case of breach of trust is raised, in my view, unless decided, there is no question of denying the right of petitioners to contest the Suit for partition. The case of defendant no.1 itself is new and now against defendants 2 to 7 and which was not even the case of the plaintiff. Therefore, even otherwise for proper adjudication, it is necessary that defendants 2 to 7 participate and contest the proceedings. Even otherwise as sufficient reasons are made out. However, it is made clear that all points and defence are kept open. 5 The petition is accordingly allowed in terms of prayer (a). Rule is made absolute accordingly. No order as to costs. (ANOOP V. MOHTA, J.)