IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.865 OF 2006 IN SUIT NO.793 OF 2006 Jerome Joseph D'Souza ..... Plaintiff V/s. Narvada Prasad S. Mishra & Ors. .... Defendants Mr.Manoj Prajapati i/by Ashoka law Firm, for the plaintiff. Mr.B.H.Vyas, for defendant Nos.1 to 3 and 6 to 11. CORAM: R.Y.GANOO, J. DATED: 28th JANUARY, 2009. P.C. 1. The plaintiff has instituted this suit to seek a declaration that conveyance dated 08-12-2004 in favour of defendant Nos.1 & 2 is null and void and for other appropriate reliefs. This notice of motion is taken out by the plaintiff so as to seek an order of injunction restraining the defendants from acting on the basis of the sale deed, which has been challenged in the present suit. 2. I have heard the counsels on both the sides. The learned counsel for the plaintiff contended that plaintiff is claiming to be the owner of the entire property in regard to which conveyance has been executed, in respect of the entire property i.e. Survey No.30 Hissa No.1, C.T.S.No.82 and such a claim is based on a Will in favour of the plaintiff, purported to have been executed by Rose Mary and Joseph. The plaintiff has not instituted Probate proceedings to press the said Will and consequently, claimed ownership in respect of the property i.e. Survey No.30, Hissa No.1, C.T.S.No.82 (hereinafter referred to as the 'Suit property'). 3. In the course of the arguments, the learned counsel for the plaintiff conceded that the sale deed which is proposed to be challenged in the present suit (hereinafter referred to as the 'said Sale Deed'), is in regard to 11/12 shares of the vendor in the said suit sale deed. He also claimed if the Will is kept away, the plaintiff has 1/12 share in the suit property. 4. If aforesaid is the position, even if the Will is kept away, what is sold is rights of the vendors in favour of the defendant No.1 qua the suit property and plaintiff's so called rights to the extent of 1/12 share is not sold by the vendor of the suit sale deed. If this is so, if at all revenue authorities would bring the names of the purchaser on the revenue record, that should be in regard to 11/12 shares and that will not be in regard to the entire suit property. If this is so, the right of the plaintiff to claim ownership in respect of 1/12 share by way of intestate succession will remain untouched and no prejudice would be caused to the plaintiff. If the plaintiff succeeds in proving the Will, of course, the situation may change which need not be discussed as of today, as the plaintiff has not filed any Probate Petition. If the name of the present purchaser is brought on record pursuant to the suit sale deed, that will not affect the rights of the present plaintiff as the sale deed is in respect of the part of the property i.e. excluding the share of the plaintiff. Hence, no prejudice would be caused to the plaintiff and as such, injunction cannot be granted as set out in the notice of motion. 5. In so far as the recovery of rent by the defendant Nos.1 & 2, there is no specific prayer in the notice of motion and as such, no views are expressed in regard to the said aspect of the matter. In view of the above, as of today, there is no need to grant reliefs in terms of the notice of motion. Hence, the order. : O R D E R : 1. The notice of motion is dismissed. 2. It is clarified that this Court has not expressed any view on the genuineness of the Will which is being pressed in service by the present plaintiff. This notice of motion is disposed of on the basis of the facts which are already observed above. 3. There shall be no order as to costs. ( R.Y.GANOO, J. )