VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION No. 102 OF 2007 IN TESTAMENTARY SUIT NO.9 OF 2007 IN TESTAMENTARY PETITION No.223 OF 2006 Arjun Saghal & Anr. Applicants Vs. Radhika Bhargava & Ors. Respondents Mr. A. S. Vakil i/b M/s. Minocheher Hiralal & Co.for the applicants. Mr. Pradeep Bakhru i/b M/s. Divya Shah & Asso. for the original plaintiffs. Ms. H.I. Advani i/b S.A. Khan for respondent No.4. Mr. Gaurang Mehta, for caveator. CORAM : D.G. KARNIK, J. DATE : APRIL 10, 2008 P.C. P.C. P.C. : 1. Applicants are not parties to the testamentary suit for probate. According to the applicants, they are nephew and niece of the deceased Malati Srivastava, and claim to be her heirs. According to them, deceased Malati Srivastava has not disposed her entire property, - 2 - under the will and the present applicants claim are her heirs in respect of the residue of the estate of her estate and are entitled to the same. They have therefore, filed this motion for a direction to the plaintiff to distribute the property which according to them, is not the subject matter of the bequest under the will. 2. In my view this cannot be done in a testamentary suit. Testamentary court is concerned only with the legality and validity of the will i.e. whether it is the last will of the testator and whether the will is made in accordance with law. Question of title to the property is decided in the testamentary suit. Similarly question of distribution of the residuary property, if any, not disposed of under the will cannot be a subject matter of the testamentary suit. The applicants cannot seek any relief for distribution/division or possession of the property of the deceased in the testamentary suit. The applicants are however, free to adopt appropriate proceeding for recovery of property which they claim to have acquired by succession. With this observaton, the motion is dismissed. Sd/- - 3 - (D.G. KARNIK, J.)