-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 496 OF 2006 IN SUIT NO. 2049 OF 2000. Jaya Ramji Makwana & Anr. ..Plaintiffs. Versus Aajubai Mitha Makawana & Ors. ..Defendants. AND Lalji Parmar. ..Applicant. Mr. Prakash Mahadik for the Applicant. Ms. Manisha Mehta i/b J. B. Patel for the defendant nos. 1 & 2. Coram : R. V. MORE, J. Date : January 13, 2010. P. C. : 1. Heard learned counsel appearing on behalf of the respective parties. This chamber summons is taken out by the applicant to substitute him in place of the deceased plaintiff no.1 - Jaya Ramji Makwana. 2. The plaintiff no.1 - Jaya expired on 12th December 2003 and the plaintiff no.2 expired on 14th February 2006. The deceased plaintiff no.1 and deceased plaintiff no.2 were the mother and son. The present applicant is the brother of the deceased plaintiff no.1 - Jaya. 3. The suit is filed for general partition and share in the estate held by deceased Ramji, husband of the plaintiff no.1. The defendants are the mother-in-law and sister-in-law of the deceased plaintiff no.1. 4. The applicant claims that the deceased plaintiff no.1 has executed a registered will-deed on 1st August 2000 in his favour, bequeathing thereby -: 2 :- her share in the joint family property. The applicant has also filed the proceeding in this Court for obtaining the probate of the will executed by the deceased plaintiff no.1 - Jaya. The said proceeding is still pending. 5. Learned counsel appearing on behalf of the defendants opposed this chamber summons on the ground that neither the plaintiff no.1 nor the applicant has any right in the joint family property belonging to the deceased husband of the plaintiff no.1. She further submitted that in the absence of probate the applicant is not entitled to substitute himself in place of the deceased plaintiff no.1 - Jaya. The issue regarding entitlement of the deceased plaintiff no.1 - Jaya cannot be decided at this stage and the same is required to be decided at the time of hearing of the suit after giving opportunity to both sides to lead evidence on record. The objection regarding the obtaining of probate is concerned, the impleadment of applicant in place of the deceased plaintiff no.1 will always be subject to the probate proceeding filed by the applicant. In the aforesaid circumstances, the chamber summons is allowed in terms of prayer clause (a). Necessary amendments be carried out within the period of two weeks from today. Thereafter, the amended copy of the plaint be served on the defendants within the period of 4 weeks. Chamber summons stands disposed of. (R.V. MORE, J.) -: 3 :-