1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Amk NOTICE OF MOTION NO. 1624 OF 2009 IN SUIT NO. 3127 OF 1996 Mrs. Shirin Boman Faramarzi .. Plaintiff Vs. Mrs. Banoo Merwan Aref & Ors. .. Defendants. Mr. D. D. Madon with Mr. Jariwala i/b Thakore Jariwala & Associates for the Plaintiff. Mr. Vastal Shah with Mr. C. N. Mehta for Defendant Nos. 2, 4 & 5. CORAM : MRS. R. S. DALVI, J. DATE : 17th June, 2010. P.C. 1. This an administration suit is filed by one of the heirs of their deceased father. The suit is filed essentially between the siblings and their mother who is the widow of the deceased. 2. Defendant Nos. 2, 4 & 5 have admitted in the affidavit-in-reply to this Notice of Motion itself that their father died intestate. 3. Upon the admission of Defendant Nos. 2, 4 & 5 itself the administration suit on intestacy is required to be decreed. 2 4. Defendant Nos. 2, 4 & 5 who are the brothers and sisters of the Plaintiff did not file their Written Statement. Consequently the Plaintiff’s averment that her father died intestate remained uncontroverted. That averment is now admitted. 5. An ex-parte decree dated 05.10.2007 was passed in this suit. The decree allows the estate of the deceased to be collected and for that purpose allows the parties to the suit to adduce evidence. Hence the decree dated 05.10.2007 was a preliminary decree under Order XX Rule 18 of the Code of Civil Procedure. 6. This Notice of Motion is taken out for setting aside that exparte decree. It is delayed by 565 days. 7. Defendant Nos. 2, 4 & 5 claim that only the properties 1 and 9 in the list of assets and properties, Exhibit A to the plaint are left by the deceased and form the estate of the deceased. They claim that the properties 2 to 8 are their separate properties and those properties do not form a part of the estate of the deceased. 8. Under the order and decree dated 05.10.2007 the Defendants are also entitled to adduce the evidence as the parties to the suit. They shall be entitled to file their affidavit showing their separate title to those properties despite the fact they had not filed Written Statement in the 3 suit. 9. Consequently the order dated 05.10.2007 is not required to be set aside though Defendant Nos.2, 4 & 5 are required to be allowed to lead evidence and be heard on merits by the Commissioner for taking accounts in respect of collection of the assets and properties left by their deceased father. 10. Hence the parties shall appear before the Commissioner with whatever evidence they have to adduce as per the order dated 05.10.2007 on 26th July, 2010. Defendant Nos. 2, 4 & 5 shall be entitled to file their affidavit of evidence and produce their documents. The Commissioner shall consider those documents and proceed expeditiously in accordance with the order dated 05.10.2007 and file his report in terms of the order dated 05.10.2007. 11. Parties shall apply for passing the final decree after the Commissioner makes his report. 12. The Notice of Motion is disposed of accordingly. ( R. S. DALVI, J.)