1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION NOTICE OF MOTION NO.1 OF 2008 IN MISC.PETITION NO.78 OF 2007 IN PETITION NO.273 OF 2005 Rebeka Zafar Khan & anr. ..Petitioners V/s. Captain Victor Elijah & anr. ..Respondents Mr.Prakash Gunwani i/b.M/s.Shiralkar & Co., advocate, for the petitioners Mr.Munir Merchant, advocate, for the respondents CORAM : S.J.VAZIFDAR, J. DATE : 29TH FEBRUARY, 2008 P.C. . The prayer in the Notice of Motion is as follows :- “That pending the hearing and final disposal of Miscellaneous Petition No.78 of 2007, the Respondents be directed to pay to the Petitioners forthwith the 38% share of Petitioner No.1 and 8% share of Sinai Khan in the residuary estate of the deceased Mozel Samson, without insisting on the Petitioners executing full discharge to the Respondents and without attaching any 2 conditions to such payment and without prejudice to the rights and claims of the Petitioners against the Respondents;” 2. The petitioner has filed the above petition under Section 263(e) of the Indian Succession Act, 1925 for revocation of grant of Probate dated 3rd August, 2005 of the Will and Testament dated 2nd October, 1995 of the deceased issued to the respondents in the above Testamentary Petition. The petitioner has not challenged the Will. The petitioner has in fact affirmed the Will. The revocation is sought only under Section 263(e) of the Indian Succession Act, 1925. 3. The learned counsel appearing on behalf of the respondents/executors does not deny that the amounts are payable as claimed in the Notice of Motion. The respondents however, insist on the petitioner's discharging them of all liabilities irrespetive of what they may have done. 4. It is not necessary for the purpose of this 3 Notice of Motion to consider the rival contentions of the parties regarding the conduct of the executors and whether they are liable or not. The parties are at liberty to adopt appropriate proceedings in respect thereof. The respondents are also at liberty to adopt appropriate proceedings seeking a discharge of their liabilities, if necessary. 5. With the above clarification Notice of Motion is made absolute in terms of prayer clause (a). The prayer should be complied with within a period of four weeks from today. (S.J.VAZIFDAR, J.)