1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.97 OF 2008 IN TESTAMENTARY SUIT NO.40 OF 2002 IN TESTAMENTARY PETITION NO.916 OF 1998 Madhuri Chandrakant Desai & ors ..Plaintiffs V/s Mrs.Nita Nilesh Desai ..Defendant And Smt.Malini Vijaykumar Desai & ors ..Applicants Ms.S.H.Dalal, Advocate, for the plaintiffs Mr.Naresh S. Fadia, Advocate, for the defendant Mr.Atul Damle i/b.M/s.Subhash Pradhan & Co., Advocate, for the applicants CORAM : R.M.SAVANT, J. DATE : 11TH DECEMBER, 2008 P.C. . By the above Chamber Summons, the applicants seek the following reliefs. 2 (a) That the delay of 249 days in taking out this Chamber Summons be condoned. (b) That the title of the plaint be allowed to be amended by impleading the applicants above named as the defendant Nos.2 to 5 in the above suit, as per particulars set out in Schedule annexed hereto. (c) For all consequential amendments in the plaint. 2. The Testamentary Petition was filed by the plaintiff No.1 for the probate of Will and five codicils left behind by the deceased Chandrakant Bhikalal Desai, who was the husband of the plaintiff No.1. Since in the Will apart from the plaintiff No.1 the sons of the deceased Chandrakant Bhikalal Desai namely Vijay Chandrakant Desai and Kiran Chandrakant Desai were named as executors, by Order dated 30th June, 1999, passed by Her Ladship Smt.Justice K.K.Bam in Miscellaneous Petition No.31 of 1999. The said Vijay Chandrakant Desai and Kiran Chandrakant Desai, then the respondents to the said Miscellaneous Petition accepted the executorship of the Will and joined the petitioner i.e.Mrs.Madhuri Chandrakant Desai, in applying for probate of the Will and therefore were joined as petitioner Nos.2 & 3. On Caveat being filed by one of the daughter-in-laws i.e. Mrs.Nita Nilesh Desai, the Testamentary 3 Petition was converted to Testamentary Suit No.40 of 2002. It appears that Vijay Chandrakant Desai died on 21st September, 2007. The applicants, who are the heirs of the said Vijay Chandrakant Desai have filed the above Chamber Summons for their impleadment as defendants in the said Testamentary Suit No.40 of 2002. 4. I have heard the learned counsel for the parties. The said Vijay Chandrakant Desai, who was one of the executors of the Will was joined as a petitioner to prosecute the Probate Petition solely on the ground that he was one of the executors of the Will of his father Chandrakant Desai. The applicants above named who are the heirs would not have a right to be brought on record as plaintiffs since the executorship does not devolve upon the heirs by inheritence. The heirs therefore cannot have a right to be brought on record as plaintiffs. 5. In so far as the applicants' prayer for being joined them as the defendants the same also cannot be granted. Vijay Chandrakant Desai was joined as petitioner No.2 to the Probate Petition because 4 he was named as one of the executors of the Will of the deceased Chandrakant Desai. The defendants in the Testamentary Suit are persons who oppose the grant of probate by filing Caveat, obviously the applicants, who are the heirs of Vijay do not fall in that category. In that view of the matter, no relief can be granted to the applicants in the above Chamber Summons. Chamber Summons is accordingly rejected. (R.M.SAVANT, J.)