: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3447 OF 2007 IN SUIT NO.2481 OF 2004 Saraswati Omkar Pande ....Plaintiff V/s. Prabhunarayan P. Pande & Anr. ....Defendants Mr.A.G. Toraskar for the Plaintiff. Ms.Aparna D. Vhatkar for the Defendants. CORAM : S.J. VAZIFDAR, J. DATED : 15TH JANUARY, 2008. P.C. : 1. This Notice of Motion is clearly not maintainable. The Plaintiff seeks an order directing the Defendants to provide her with a flat and Rs.40,000/- per month towards the rent for occupying residential premises. The Plaintiff has also sought an order directing the Commissioner for taking accounts to take a full and true account of the properties. Lastly the Plaintiff has prayed for appointment of the Court Receiver. 2. The Plaintiff is the sister of the Defendants. The Defendants had filed Testamentary Petition No.600 of 2002 for probate of the Will of : 2 : their mother. This Court had granted the probate. 3. The Plaintiff filed Misc. Petition No.7 of 2004 in the said Testamentary Petition for setting aside the order granting probate. The Misc. Petition was disposed of by an order dated 1.4.2004 in terms of the consent terms arrived at between the parties also dated 1.4.2004. In view of the consent terms, the said Misc.Petition was dismissed as withdrawn. 4. It is not necessary to set out the various terms and conditions of the consent terms. Suffice it to note that admittedly the Defendants have performed all their obligations. The Plaintiff admittedly acknowledged having received Rs.10,00,000/- and ornaments worth Rs.7,05,000/- from Defendant No.1 by way of settlement. The consent terms themselves record the Plaintiff having accepted the said Will. The Plaintiff further admitted that receipt of the said amount and the ornaments was in full and final settlement and that she would not raise any other claim. 5. After having received the entire benefit under the consent terms, this suit was filed to challenge the said consent terms. Firstly, the : 3 : Plaintiff refuses to even bring back what she has received under the said consent terms. I hasten to add that even if she did, it not make any difference. There are no grounds which indicate that the consent terms are not valid for any reason. The Plaintiff alleges that the valuation of the property is much higher than what she thought it to be. There is nothing to indicate the same. Nor is there anything to establish that she entered into the consent terms on the basis of a wrong notion as to valuation. In any event such a mistake was admittedly not mutual. 6. This appears to be a purely speculative litigation. It is pertinent to note that the Plaintiff had earlier taken out Notice of Motion No.2438 of 2004 for various reliefs in the above suit. Some of the reliefs are similar to the reliefs claimed today. The Notice of Motion was disposed of by an order dated 15.9.2004. The Defendants were absent when the order was passed. That they were allegedly served is another matter. By the said order, prayer (d) was granted which restrains the Defendants from implementing and/or enforcing or acting upon the probate granted in Testamentary Petition No.600 of 2002 "until the Plaintiff’s entitlement is honoured and the money is paid". The Plaintiff’s entire : 4 : entitlement has been honoured and the money has been paid. She has acknowledged the same herself. That she has made further claims in this suit is another matter. I do not read the order as restraining the Defendants from acting on the probate pending the hearing and final disposal of this suit despite the payment. 7. In the circumstances, the Notice of Motion is dismissed. Costs to be the costs in the cause.