1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1667 OF 2007 IN SUIT NO.1260 OF 2007 Vikas Kapoor & Ors. ....Plaintiffs V/s. Vishwanath M. Raykar & Ors. ....Defendants Mr.N.G. Raut for the Plaintiffs. Mr.R.P. Ojha for Defendant Nos.14 to 17. CORAM : S.J. VAZIFDAR, J. DATE : 4TH SEPTEMBER, 2009. P.C. :- 1. The suit is filed inter-alia for the specific performance of an agreement dated 6.12.2006 entered into between the Plaintiffs and Defendant Nos.1 to 4, 6 and 7. The agreement was executed on behalf of Defendant Nos.6 and 7 by Defendant No.5. The agreement was for purchase of an immovable property by the Plaintiffs from the said Defendants for a consideration of Rs.6,25,00,000/-. A part payment of Rs. 1,00,00,000/- has already been made by the Plaintiffs. 2. The present dispute arises on account of the other Defendants contending that they also have a share in the property. 3. According to the Plaintiffs and Defendant Nos.1 and 4 to 6, the said Sushila M. Raykar expired leaving behind a Will dated 18.12.1992. 4. There is no dispute that the said Manjunath B. Raykar’s Will 2 was probated. Neither the Will nor grant of probate thereof was challenged by any of the heirs. Nor is there any dispute that the said Sushila M. Raykar’s Will dated 18.12.1992 was also probated. However, Defendant Nos.14, 15 and 16 took out proceedings challenging the grant of probate. The grant of probate was set-aside on 15.2.2007. The petition for probate filed by Defendant Nos.1 to 4, 6 and 7 is therefore now converted to a suit. I am informed that the suit is pending. The evidence has been partly recorded. 5. The property was originally owned by Manjunath B. Raykar. He died leaving a Will dated 1.3.1960. His widow one Sushila M. Raykar was the sole beneficiary thereof. In fact Defendant Nos.14, 15 and 16 stated that the said Sushila M.Raykar had executed another Will under which all the parties to the suit are beneficiaries. 6. In effect therefore, whereas according to Defendant Nos.1 to 4, 6 and 7 they are the sole owners of the said property being the only beneficiaries under the Will dated 18.12.1992 of the said Sushila M. Raykar, according to Defendant Nos.14, 15 and 16 all the parties to the suit are beneficiaries under another Will. The date of the Will has not been furnished at present. 7. It is important to note however that as far as the Plaintiffs are concerned, they purchased the property pursuant to an agreement which was entered into when the probate of the Will dated 18.12.1992 was still valid and subsisting. As stated above, grant of probate was set-aside on 15.2.2007. 8. It would be convenient to see the relationship between the 3 parties. The said deceased had five sons and four daughters. Three sons and one daughter have expired. Defendant Nos.1 and 2 are the sons of the deceased. Defendant Nos.14, 15 and 16 are the daughters of the deceased. Defendant Nos.4, 6 and 7 are the children of one of the deceased sons Srinivas. Defendant No.5 is the wife of Defendant No.6. Defendant No.3 is the son of another deceased son Krishna. Defendant Nos.8 to 13 are the heirs of another deceased son Shivshankar. Defendant No.17 is the daughter of the deceased daughter of the deceased one Smt.Sumitra Nagesh Vernekar. 9. Two Wills set up by different parties are pending adjudication of this Court. There is nothing to indicate that the agreement dated 6.12.2006 was not validly entered into or that there were any mala-fides at least on the part of the Plaintiffs in respect thereof. If the Will dated 18.12.1992 is probated, the Plaintiffs would have a strong case in their favour. It is necessary therefore to protect the Plaintiffs’ rights pending the hearing and final disposal of the suit which must await the result of the pending proceedings filed by the Defendants inter-se. 10. In the circumstances, pending the hearing and final disposal of the suit,the Defendants are restrained from selling, alienating, transferring, encumbering, parting with possession or disposing of or creating any third party right, title and interest in, to, upon or in respect of the suit premises. 11. The Notice of Motion is accordingly disposed of.