1 s1131-93.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Suit No 1131 of 1998 with Notice of Motion No.642 of 2010 in Suit No. 1131 of 1998 Agnes Mary Conception Rebello .. Plaintiff v/s. Charles Willibrord Gonsalves & Another ..Defendants Mr.Vaibhav Sugdhare with Shailesh Yusuf Ali i/b. M/s. S. Mohamedbhai & Co. for the Plaintiff. Mr.S.F.Rego i/b. A.I.Shaikh for the Defendant in support of Notice of Motion CORAM : R.Y.GANOO, J. DATED : 19th October , 2010 P.C. : 1. Pleadings in the Motion are complete. Motion is taken up for hearing. Few facts are required to be stated to deal with this motion. The plaintiff instituted suit against the defendants for following reliefs. Prayer clause (a) that the defendants have failed to prove the Will or 2 s1131-93.sxw manifest their intention to act as executors of the purported Will dated 1.4.1979 of the deceased John Frederick Gonsalves; Prayer clause (b) is defendants are not entitled to grant of Probate of the said Will. Prayer clause (c) is defendants are not entitled to legacies under the said Will. 2. The plaintiffs cannot dispute that the present defendants filed Testamentary Petition No.519 of 1990 to have Will dated 1.4.1979 executed by John Fredrick Gonsalves probated. Mrs.Agnes i.e. the present plaintiff filed caveat and the said testamentary petition was converted into Testamentary Suit No.10 of 1991. The said testamentary suit came to be dismissed. Hence the present defendants filed Appeal No.572 of 2001 and again prayed for grant of probate. The said appeal came before learned Division Bench . The Division Bench granted Probate petition No.519 of 1990 and probate was ordered to be issued in favour of the present defendants who are shown as executors of the Will dated 1.4.1979. 3. It is required to be noted that the present suit came to be filed in 1997 3 s1131-93.sxw and thereafter substantial developments as mentioned aforesaid as regards Will of John Fredrick Gonsalves took place and the probate has been granted. 4. The defendants have taken out this notice of motion and have prayed that the present Suit No.1131 of 1998 should be dismissed under Order VII Rule 11 of CPC. Reading of this prayer will have to be taken in the sense, namely on account of grant of probate the suit has become infructuous in so far as the reliefs which are sought in the present plaint. Needless to mention that the court has every power to mould the relief to be granted depending upon the facts and circumstances of the case. It is in this background I have heard the present notice of motion. 5. It is not in dispute that pursuant to the orders passed in Appeal No. 572 of 2007 the probate has been granted. The said Probate is granted in November 2009. Today we are in October 2010. With these facts, learned Counsel Mr. Sugdhare was asked as to how the present suit can be taken up for hearing and disposal as the purpose for which the suit was instituted has been met with and that the suit 4 s1131-93.sxw has become infructuous. 6. Learned Counsel Mr. Sugdhare appearing on behalf of the plaintiff submitted that fraud has been practised by the defendants in the matter of obtaining probate and that is how the court has to make enquiry about the matter. In so far as this aspect is concerned, now that the probate has been granted, the Will dated 1.4.1979 executed by said John has been accepted and a duty is cast on executors to act in accordance with the directions contained in the Will and give effect to the last wishes of said John Fredrick Gonsalves. It is clear that the purpose for which the suit has been filed has been met with and the suit has become infructuous. 7. If at all it is the case of the plaintiff that probate has been obtained by practising fraud on the court or by making false statement, it is open for a party who is interested in the estate of said John Fredrick Gonsalves to make application to the court which granted probate for revocation of the probate. Certainly the said application will have to be decided on merits. Today, I do not wish to comment upon the submission made by learned Counsel Mr. Sugdhare that the 5 s1131-93.sxw defendants have practised fraud and secured the probate. If at all the present plaintiff is of the view that the defendants have secured probate by practising fraud it will be open for the plaintiff to attend to the said allegations and apply for appropriate reliefs. Certainly those reliefs cannot be granted in this suit. 8. It was argued by the learned Counsel for the plaintiff that defendants are not entitled to legacies under the said Will. This aspect also now can’t be gone into. It will now be the duty of the Executor to implement the last wishes of said John and if the present defendants have any difficulty in implementing the wishes of said John certainly they will have to make an application to the Court and seek appropriate orders. 9. In view of the aforesaid discussion, the suit filed by the plaintiff has become infructuous and the same is therefore required to be dismissed. Hence following order is passed. ORDER i. The purpose for which the suit was filed has been met with on 6 s1131-93.sxw account of grant of probate of Will dated 1.4.1979 executed by John Fredrick Gonsalves. Hence the suit has become infructuous and is dismissed accordingly. ii. Copy of the appeal court judgment and copy of the probate tendered by the Counsel Mr. Rego is taken on record. It is clarified that if the rights of the present plaintiff are infringed, the plaintiff is free to adopt appropriate proceedings to protect her rights. Iii. There shall be no order as to costs. iv. In view of the above order, Notice of Motion No.642 of 2010 also stands disposed of . [R.Y.GANOO, J.]