1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION NOTICE OF MOTION NO. 50 OF 2009 IN SUIT NO. 39 OF 2006 IN PETITION NO. 899 OF 2004 Rakesh B. Sharma. ... Plaintiffs. V/s. Jayprakash Shivshankar Tiwari. ... Defendant. And Jayant Kanaiyalal Shah. ... Intervener/Applicant. Mr. D.R. Mishra for the Plaintiff. Mr. C.K. Tripathi for the Defendant. Mr. Shriniwas Deshmukh with Devesh Juvekar i/b. Khaitan & Co. in support of the NM for Intervenor CORAM : S.C. DHARMADHIKARI,J. DATED : 29th JULY 2009. P.C. :- Heard parties. The prayer in this Notice of Motion is to implead the Applicant/Intervenor as a party Defendant in the Suit. 2. My attention is invited to para 2 of the affidavit in support so also paragraph 6 thereof and it is contended that although, the proceedings that have been presently moved may not be the appropriate remedy, yet, nothing prevents the 2 Applicant/Intervenor from placing the caveat in this Court and pointing out his caveatable interest. Today that is pointed out on affidavit and therefore, the Intervenor/Applicant be directed to be impleaded as a party Defendant, more so, when the proceedings are already converted into a Suit. 3. It is contended on behalf of the Plaintiff that the remedy of the Applicant is to file a caveat and affidavit in support thereof. That remedy is not availed off and the time to do so has already expired. Secondly, assuming but without presuming that the Applicant can be impleaded, he is only a class II heir and cannot claim any higher right in the property of the deceased. 4. To my mind, the issue as to whether the Applicant/Intervener will be entitled to any benefits under the Will would arise only after the Petitioner/Plaintiff proves the Will in the proceedings that are initiated now. He will have to prove the Will and the burden is on him. In such circumstances, one of the heirs of the deceased can certainly apply to this Court for his impleadment. No prejudice will be caused and on the other hand the Court would be benefited by the presence of the Applicant/Intervener. His presence will assist the Court in effectually and completely resolving the controversy. 5. In these peculiar circumstances, the Notice of Motion is allowed. It is directed that Intervener Jayant K. Shah shall be 3 added as a party Defendant to the Suit. All amendments in that behalf be carried out within a period of two weeks from the date of the receipt of the copy of this order. However, mere impleadment could not give any right to the Applicant/Intervenor to claim any benefit under the Will and all contentions and objections in that behalf are kept open. (S.C. DHARMADHIKARI,J.)