kbp 1 1929-08.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBA ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1929 OF 2008 IN SUIT NO.1861 OF 1984 Sardar Sambhaji Angre (deceased) ..Plaintiff. Vs. H.H.Jyotiraditya Madhavrao Scindia & ors. ..Defendants. ........ Mr.J.P.Sen a/w.Ms.Sheetal Shah i/b.M/s.Mehta & Girdharlal, for plaintiff. Mr.Dipen Furia i/b.M/s.Niranjan & Co., for defendant no.1. Mr.D.r.Zaiwala i/b.M/s.Zaiwala & co., for defendant no.1A. Mr.Praveer Shetty i/b.M/s.Res Legal, for defendant nos.3 to 7. ......... CORAM : A.S.OKA, J.. DATE : 7th November, 2009. P.C. : 1] I have heard learned counsel for the applicant in support of the chamber summons. I have heard learned counsel for defendant no.1A who has opposed the chamber summons. I have also heard learned counsel for the defendant no. 1B as well as defendant Nos.2 to 7. The defendant No.1B as well as defendant nos.3 to 7 have supported the chamber summons. 2] The original plaintiff died on 25 th January, 2001. Thereafter, one Sardar Sambhaji Angre was brought on record as the legal representative of deceased plaintiff under the order dated 24 th April, 2001 passed by the Prothonotary and Senior Master. The said Sardar Sambhaji Angre was claiming to be one of the kbp 2 1929-08.sxw executors of the last will of the plaintiff. The present chamber summons has been taken out as the said executor died on 15 th March, 2008. The applicant who has taken out the chamber summons claims to be a co-executor. In paragraph 5 of the affidavit in support, it is contended that the present applicant is the sole surviving executor under the said will. 3] The opposition to the chamber summons by the learned counsel for defendant no.1A is on the ground that when the said Sardar Sambhaji Angre applied for bringing his name on record, present applicant was unwilling to act. He pointed out the averments made in paragraph 3 of the affidavit in support of the present chamber summons in which the applicant has stated that he declined to be brought on record earlier, since he was not in a position to render service. Learned counsel for defendant no.1A, therefore, submitted that in view of the said stand taken by the applicant, now he cannot be allowed to be brought on record. 4] Learned counsel for the applicant has tendered on record a true copy of the order dated 18 th March, 2009 passed by the Delhi High Court. He pointed out that the said order has been passed in pending application for probate in respect of the said will of the deceased plaintiff. He pointed out that the application for probate was filed by the said Sardar Sambhaji Angre and under the aforesaid order, the present applicant has been permitted to be substituted in place of Sardar Sambhaji Angre. kbp 3 1929-08.sxw 5] After having heard the submissions, I find that defendant No.1A in the reply filed to this chamber summons has not disputed the case made out by the applicant that he is a co-executor under the alleged will dated 20 th September, 1985 of the original plaintiff. It must be noted here that the said Sardar Sambhaji Angre was ordered to be brought on record in place of original plaintiff in his capacity as one of the executors under the said will. It is not disputed in the reply that the applicant is a co-executor as alleged. The order of the Delhi High Court shows that in probate application, the applicant has been allowed to be brought on record as the petitioner in place of the deceased Sardar Sambhaji Angre. The delay has been explained in paragraph 5 of the affidavit in support. Hence, the Chamber Summons deserves to be made absolute. Hence, I pass the following order:- (i) Chamber Summons made absolute in terms of prayer clauses “a” to “c”. (ii) Amendment be carried out within four weeks. (iii) There will be no order as to costs. ( A.S.OKA, J. )