1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.62 OF 2008 IN TESTAMENTARY SUIT NO.49 OF 2005 Sudhakar Anantram Shetty .. Plaintiff Versus Yashodha Krishna Shetty & Ors. .. Defendants and Baskar Seena Shetty & Ors. .. Respondents Ms.Bookwala with Ms.P.Parekh i/b. Dhru & Co. for petitioner Ms.P.G.Bhatia for defendants Mr.J.K.Hegde for respondents. CORAM : S.C.DHARMADHIKARI, J. DATE : 5th December 2008 P.C. . This is a Notice of motion to set aside and dismiss the Caveat filed by the Respondents. Along with notice of motion which is moved by the petitioner, there is a chamber summons moved by the respondents to the notice of motion. The controversy is common viz., wheher the following 2 persons viz., (1) Baskar Seena Shetty; (2) Ashok Seena Shetty; (3) Bhalesh Seena Shetty; (4) Sujata Shetty; (5) Sunita Shetty; (6) Shakuntala Shetty; (7) Shubashcandra Seena Shetty; Respondents herein can be said to have any caveatable interest insofar as the estate of the deceased Rammanna Shetty. 2. The petition is filed for the probate of 3 the last will and testament of Rammanna Shetty dated 29th January 2004. Upon citation being served, one Krishna K.Shetty filed his Caveat. The said Krishna is the brother of the deceased. As on the date of filing of the caveat, he was alive but subsequently, he expired. Heirs of the deceased Krishna Shetty were brought on record and are impleaded as party defendants to the suit. 3. Now it is claimed by the respondents, whose names are enlisted above, that they are heirs of Seena Shetty who is brother of Rammanna Shetty and he predeceased Rammanna. 4. In para 6 of the affidavit in support of the notice of motion, this is what is stated:- "6. The respondents are the children of one Shri Seena Shetty, who had predeceased the deceased Ramanna K. 4 Shetty whose will is being probated. I submit that at the time of death of deceased Ramanna K. Shetty, his brother Shri Krishna K. Shetty was alive and he was the one legal heir entitled to succeed to the estate of said deceased under entry No.II(3) as Class II heirs on intestacy. However, the respondents are the children of predeceased brother of deceased Ramanna K. Shetty and they are as legal heirs under entry No.IV (1) as Class II heirs Hindu Succession act 1956." 5. After the matter was argued for some time and attention of Mr.Hegde, learned Advocate appearing for abovementioned respondents who have also taken out a chamber summons, was invited to this factual position and section 9 of the Hindu Succession Act, 1946, he found it difficult to support the joinder at this stage. 5 6. In the light of the above undisputed factual position and the provisions of law, it appears to me that at this stage, neither the chamber summons can be allowed nor the prayer of respondents to join them as party defendants can be considered. The apprehension of Mr.Hegde for respondents is that the original defendants to the suit and the petitioner may compromise and enter into some arrangement. That can be taken care by recording statement of Ms.Bhatia appearing for original defendants that if at all there is a compromise arrived at between the above two parties or she withdraws her appearance, she will give 15 days notice to the respondents soas to enable them to adopt appropriate proceedings. 7. In the light of the factual and legal position so also the statement recorded, the notice of motion has to succeed. It is 6 accordingly made absolute in terms of prayer clause (b). Needless to state that since the notice of motion succeeds, the chamber summons must be dismissed and the same is dismissed with no costs but subject to above. 8. Petitioners’ Advocate has, through inadvertance, not carried out amendments to the plaint soas to implead the heirs of Krishna as defendants. Learned Advocate for petitioners states that such amendments will be carried out and copies of the amended plaint will be served on the newly added parties on or before 9th January 2009. ( S.C.Dharmadhikari, J )