vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.462 OF 2003 NOTICE OF MOTION NO.462 OF 2003 NOTICE OF MOTION NO.462 OF 2003 IN SUIT NO.515 OF 2003 Smt.Zita Christopher Gomes & Ors. ... Plaintiffs V/s. Christina Batra ... Defendant Ms.Eventa A. Gonsalves for Plaintiff None for Defendant CORAM: SMT.NISHITA MHATRE, SMT.NISHITA MHATRE, SMT.NISHITA MHATRE, J. J. J. DATED: JUNE 13, 2006 JUNE 13, 2006 JUNE 13, 2006 P.C.: P.C.: P.C.: . The Plaintiffs are the children of Denis Gomes who died intestate leaving behind his widow, Nancy and his children. The Plaintiffs are his children. Another son, Troy Gomes, expired on 2.5.2002. Nancy Gomes died intestate on 12.7.1979. The Plaintiffs and Troy Gomes therefore, inherited the property which is described in Exhibit A to the plaint. Each of them were entitled to 1/5th share. According to the Plaintiffs, Troy died a bachelor and therefore, they are entitled to inherit his share of the property equally. 2. According to the Plaintiffs, they pooled their resources and had Room No.3 in Nancy Gomes Chawl vacated to enable Troy to start some business for his livelihood. A beauty parlour was therefore, started in Room No.3 by employing the Defendant, who claimed to be a beautician. It appears that after the death of Troy, : 2 : the Defendant continued to be in possession of room No.3 and has started residing there. She has constructed an upper floor on this tenement by removing the Mangalore tiles and is continuing to run the beauty parlour. 3. Correspondence has ensued between the plaintiffs and the defendant. The plaintiffs called upon the defendant to vacate the premises. The defendant refused to do so contending that she had been bequeathed the suit premises i.e., Room No.3 in Nancy Gomes Chawl by Troy Gomes and was therefore continuing in possession. It appears that the parties lodged several complaints against each other with the Police. The plaintiffs denied the alleged will of Troy Gomes. A copy of the will which the Plaintiffs contend they obtained from the Defendant at the Police Station has been annexed to the suit plaint. The will purports to bequeath the assets of the deceased Troy Gomes to his children Sunny and Sumren. The plaintiffs claim that they are not Troy’s children at all. According to the Plaintiffs, the defendant never married Troy. The plaintiffs contend that although a public notice of marriage as alleged by the defendant is issued on 23.4.2002, Troy was confined to bed at that time. The Plaintiffs contend that Troy was suffering from AIDS and was in a state of delirium and therefore, he could never give any notice of marriage nor could he have executed the will. It is also contended that the Defendant’s first marriage was subsisting and therefore she could not have married : 3 : Troy. 4. Although by an earlier order, the defendant has been restrained from creating any third party rights, it is necessary for this Court to grant further reliefs. 5. The Written statement has been filed by the Defendant where she contends that she was a tenant of Troy. She has denied any knowledge of Troy’s will. She contends that she came to know of the will only when the suit was filed and served on her and that she had not furnished any copy of the will to the plaintiffs. 6. The learned Counsel for the Plaintiff points out a letter sent by the advocate for the defendant to the advocate for the plaintiffs informing them that Troy had left behind a will and that the defendant was claiming possession and ownership of Room NO.3 under the will. This letter is at Exhibit D to the plaint. The letter also mentions that Room No.3 of which the defendant claims to be a tenant admeasures 10’X19’. There is no mention of an upper floor. 7. Heard the learned Advocate for the Plaintiffs. Nobody appears for the Defendant, though served. 8. Admittedly, there is no probate petition filed by the defendant, nor is there any suit for a declaration that she is a tenant of the plaintiffs or : 4 : was a tenant of Troy. The Defendant has been prevaricating and has prima facie, taken contradictory stances in the correspondence and the written statement. The photographs produced by the Plaintiffs show that the Defendant has altered the suit premises. The Mangalore tiled roof over the tenement has been removed and an additional floor has been constructed by the Defendant without permission from the Plaintiffs. In such circumstances, I am of the view that the Notice of Motion must be made absolute. The learned Advocate for the Plaintiffs does not press prayer clause (d). Notice of Motion is made absolute in terms of prayer clauses (a), (c), (e) and (f).