* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION NOTICE OF MOTION NO. 131 OF 2009 IN TESTAMENTARY SUIT NO.77 OF 2008 IN PROBATE PETITION NO. 199 OF 2008 Mrs.Sabina Amirali Merchant .....Petitioner/Plaintiff V/S. Aftab Sheriff Merchant .....Caveator No.1/Defendant Nilofer Malik Halani .....Caveator No.2/Defendant --------- Mr.Vijay Sutrale, adv.for plaintiff. Mr.Aftab Sheriff Merchant- Caveator No.1 in person/in support of N/M. Coram : S.C.Dharmadhikari, J. Dated : 4 th November, 2009. P.C. : 1. Heard. 2. This is an application by Caveator no.1 seeking appointment of an Administrator or Commissioner in respect of the entire estate of the deceased. 3. In the affidavit-in-support of this Caveat, detailed allegations have been * 2 * made with regard to the entitlement of the petitioner/plaintiff to obtain the grant in his favour. Upon being repeatedly asked as to how the statements made in the affidavit-in-support justify the appointment of Administrator, all that the Caveator no.1 who appears in person, urges that presently it is true that one suit being Suit No.18 of 2007 is filed in the court of Civil Judge Senior Division, Alibaug which is for specific performance of an agreement entered into with one Shri.Vesavkar. 4. In that Suit on the own showing of the Caveator no.1, there is an injunction order restraining the present petitioner/plaintiff and other defendants to the suit from creating any third party rights or alienating the suit property. On instructions, the plaintiff s advocate states that this injunction binds the ’ present plaintiff who is also defendant to the suit. She is restrained from transferring the suit property to Shri.Vesavkar, who claims specific performance of an agreement of sale in his favour. That property is the same with regard to which allegations in the affidavit-in-support are made. In such circumstances, presently the order of injunction passed by the court at Alibaug sufficiently protects the Caveator no.1. In the event, that injunction order is vacated or set aside, the Caveator no.1 can seek appropriate relief. The Notice of Motion is disposed off with liberty to the Caveator no.1 to apply for relief in terms of the present Notice of Motion, in the event the suit is disposed off or the order of injunction is vacated. * 3 * 5. All contentions of both sides in that behalf are kept open. The Notice of Motion stands disposed off accordingly. [S.C.Dharmadhikari, J]