1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 379 of 2007 IN PAUPER PETITION (Lodging) No.196 of 2007 IN SUIT NO. ....... of 2007 Aloysius Manuel D Souza & Ors. .. Plaintiffs versus Mary @ Kamal William D Souza @ Mary Kamala Jonnakutty & Anr. .. Defendants ... Ms.Rohini Dandekar i/b Berarwala & Co. for the plaintiffs. Mr.R.D. Suryawanshi for defendant no.1 CORAM : D.G.KARNIK, J DATED : 29th April 2008 P.C.: 1. Heard learned counsel for the plaintiff and 2 defendant no.1. 2. By this motion, the plaintiffs seek appontment of the Court Receiver as receiver in respect of flat no.2C situated at defendant no.2 co-operative society (for short ’the suit flat’) The plaintifs also seek an injunction restraining the defendant from selling, transferring or alienating the suit flat to anybody else. 3. The suit flat belonged to late Mr.William D Souza (hereinafter referred to as ’the deceased’) who died on 4th October 2000. The defendant no.1 is his widow. The plaintiffs claim to be the brothers, sisters and other relatives of the deceased. According to the plaintiffs, defendant no.1 is not the widow of the deceased and was never married to the deceased. She was only living with the deceased as an "Aaya" (maid servant) and is trying to grab the property of the deceased. Therefore, the plaintiffs have applied for the appointment of receiver and injunction. 4. Material on record prima facie shows that the defendant no.1 was married to the deceased on 22nd December 1999. A copy of the certificate of Marriage issued by Marriage Registrar, Mumbai, is 3 found at page nos.105 to 106 of the plaint which prima facie shows that the defendant no.1 was married to and is the wife (widow) of the deceased. Furthermore, the defendant no.1 has already obtained a certificate of heirship under the Bombay Regulation No.8 of 1825. In the circumstances, prima facie the defendant no.1 is the heir of and has inherited the property of the deceased. 5. Learned counsel for the plaintiffs submitted that the deceased has left behind him his last will and testament dated 12th September 2000 and under the said will the suit flat has been bequeathed to the plaintiffs. Previously, plaintiffs had filed Misc. Petition no.1 of 2005 in this court. In the said petition, petitioner had not disclosed the existence of any will of the deceased. The said petition was withdrawn by the petitioner on 3rd March 2005 and a fresh petition bearing Misc. Petition no.27 of 2006 was filed. In the second petition, the plaintiffs stated that deceased had left behind his last will dated 12th September 1997. They did not say anything about the alleged will dated 12th September 2000. Now, the plaintiffs have come forward with the case that deceased had left behind him his last will dated 12th September 2000. There is inconsistency in the stand taken by the plaintiffs. Firstly, they came 4 only as heirs of the deceased and not under a will. Secondly, they came not under a will dated 12th September 1997. Now they claim under an alleged will dated 12th September 2000. None of the wills id probated. Section 213 of the Indian Succession Act states that no right as an executor or a legatee can be established in any Court of Justice, unless a Court of competent jurisdiction has granted probate of the will under which a right is claimed, or has granted letters of administration with a copy of the will annexed. In the circumstances, prima facie plaintiffs have not established that they have any right to the property of the deceased. On the other hand, defendant no.1 is the wife and an heir of the deceased. 6. For these reasons, plaintiffs are not entitled to any of the reliefs claimed in the motion. Motion is accordingly dismissed. 7. Learned counsel for the plaintiffs prays for stay of the order. Since the order is of refusal of the interim relief, there is no question of grant of any stay. Prayer for stay of the order is rejected. (D.G. KARNIK, J)