/ 1 / IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION CHAMBER SUMMONS NO.62 OF 2008 IN TESTAMENTARY SUIT NO. 3 OF 2006 IN TESTAMENTARY PETITION NO.779 OF 2005 Dilipbhai Pranlal Shah ...Petitioner/Plaintiff Vs. Mrs. Bharti M. Mehta ...Caveator/Defendant And Babulal M. Shah ...Applicant --- Mr.T.G. Vora i/b. M/s. K.V. Chheda & Co. for Petitioner M.V. Swapnil Bandodkar i/b. Vinod Mistry & Co. for Applicant & Caveator ---- CORAM: V.M. KANADE J. DATED 17TH SEPTEMBER,2008 P.C. 1. Heard the Learned Counsel appearing on behalf of the Applicant and the learned Counsel for the Plaintiff. This Chamber of Summons has been taken out by the Applicant, seeking following reliefs: “(a) that the Applicant may be allowed to implead in the above matter as Party Defendant; (b) For costs; (c) For such further and other reliefs as this Hon'ble Court may deem fit and proper.” 2. The brief facts are as under: / 2 / Vimlaben Shah was the owner of certain properties and she was having 25% share in the said property. She along with the other two owners sold the said property on 17th June, 1994 by executing three different agreements and irrevocable power of attorney were also executed by the Plaintiff and by the said Vimlaben Shah on 23rd June, 1994 and the Applicant had purchased the property by virtue of the aforesaid three agreements. Vimlaben expired on 9th February, 1997. She was survived by her husband and other heirs. Her husband allegedly executed a Will on 3rd April, 2003 and he expired on 26th September, 2003. Thereafter a Probate Petition was filed by the Petitioner herein. The said Probate Petition is pending. In this Probate Petition, the Applicant has filed his Chamber Summons for being impleaded as a formal Defendant. 3. It is an admitted position that the property in question, which is allegedly purchased by the Applicant herein was acquired by the Government under the Land Acquisition Act and in the same an award was passed. The Special Land Acquisition Officer has noted the submission made by the Applicant herein, who has claimed that he is the owner of the said property and has further observed in the award that the person who proves his title over the land would be entitled to get the compensation. 4. The learned Counsel appearing on behalf of the Applicant submits / 3 / that in an affidavit filed by Alpa Dagli dated 21st November, 2006, in paragraph 8, certain averments have been made by her regarding the agreement executed by the deceased with the Applicant. He, therefore, submits that it is necessary that he should be impleaded as a formal Defendant in this suit. This submission cannot be accepted. The Special Land Acquisition Officer in the award has already noted the objections raised by the Applicant herein and has specifically clarified that the person, who establishes his title in respect of the said land would be entitled to get the compensation. Therefore, it is immaterial what order is passed in the probate petition filed by the Petitioner. 5. Section 30 of the Land Acquisition Act clearly contemplates that in the event there is a dispute between the claimants over the apportionment of payment of the compensation, a reference has to be made by the Collector to the District Court. The issue, therefore, whether the Applicant is entitled to get compensation or not cannot be decided in the probate petition. The Applicant, therefore, under these circumstances, has no locus and is not a necessary or a proper party in the probate proceeding. Chamber Summons is, therefore, dismissed. 6. It is clarified that all the contentions raised by the Applicant before the Land Acquisition Officer or a reference made to this Court are kept open. / 4 / Similarly, the contentions raised by the Petitioner in the land acquisition proceeding are also kept open. Chamber Summons is accordingly disposed of. V.M. KANADE J.