1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION NOTICE OF MOTION NO.117 OF 2009 IN TESTAMENTARY SUIT NO.31 OF 2005 IN TESTAMENTARY PETITION NO.172 OF 2004 Kalpana Dilip Dave ...Plaintiff/petitioner vs. Smt.Pista @ Pramila Chhaganlal Dave ...Defendant/Caveator Ms Smita Meshram i/b Mr.K.R.Trivedi for the plaintiff Mr.S.H.Khaire for the defendant/respondent CORAM :A.S.OKA,J. DATE : NOVEMBER 27, 2009 P.C. 1 Heard the learned counsel for the respondent in support of the notice of motion and the learned counsel for the plaintiff/Petitioner. 2 This notice of motion has been taken out by the respondent in a petition filed by the petitioner for grant of letters of administration of the estate of late Mr.Dilip Chhaganlal Dave. The petitioner is the widow of the deceased and the respondent is the mother of the deceased. One of the properties held by the deceased is a flat which is more particularly described in prayer clause (a) of the notice of motion. The documents of title in respect of the said flat have been deposited in the custody of the Prothonotary and Senior Master of this Court. By order dated 30th July 2009 passed by this Court in notice of motion no.1807 of 2009, this Court 2 directed that the documents shall lie with the Prothonotary and Senior Master of this court and will abide by such order that may be passed by the Court in the Testamentary proceedings. The petition filed by the petitioner has been converted into present suit as a result of contest. 3 The learned counsel for the respondent submitted that the respondent has paid the entire dues in respect of the flat payable to the HDFC Ltd and that is how the documents of title have been obtained. He submitted that the respondent has given an undertaking that that no third party interest will be created in respect of the said flat. He submitted that the documents be returned to the respondent on any further condition which this Court may impose. 4 I have considered the submissions. Admittedly, the respondent is not the exclusive owner of the said flat and the respondent has an undivided share in the flat. It is obvious that pending the suit, the respondent is not entitled to deal with the said flat. Therefore, no purpose will be served by returning the documents of title to the respondent. It is in the interests of both the parties that the said documents be retained in the custody of the Prothonotary and Senior Master. Hence, prayer made in the notice of motion cannot be acceded to. Notice of motion is dismissed of accordingly. JUDGE