1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Amk NOTICE OF MOTION NO. 4371 OF 2008 IN SUMMARY SUIT NO. 3417 OF 2008 Yamuna wd/o Bommaya Kotian & Anr. .. Plaintiffs Vs. Sukhdev B. Kotian & Ors. .. Defendants Mr. Khan Javed Akhtar for the Plaintiffs. Mr. Gaurav Joshi with Kiran Gandhi i/b Little & Co. for Defendant No.2. CORAM : MRS. R. S. DALVI, J. DATE : 15th April, 2010. P.C. 1. The plaintiffs are mother and daughter. Defendant No.1 is son of plaintiff No.1. Defendant No.2 is the developer inter alia of the suit property. The plaintiffs claim 1/3rd share in what they call the assets of the deceased husband of plaintiff No.1 on intestacy of the deceased husband of the plaintiff No.1. The plaintiffs claim that defendant No.1 claims the entire assets under a Will of the deceased father. Defendant No.1 is stated to have obtained notarized the Will of the deceased. The Will is not probated. It cannot be looked into. It cannot grant succession rights to the beneficiaries mentioned in the Will. 2. The plaintiffs accept the Will. The plaintiffs rely upon clause 3 of the Will. Clause 3 shows that the deceased 2 husband of plaintiff No.1 bequeathed one Sukdeo Restaurant, 1 shop called Kiran Tailors, 1 Pan shop, 1 Room No.7 situated in shop No.7 admeasuring 2,000 sq. ft. and Mangala Pan Bidi Shop situated near Poshak Tailors Shop as well as Cow Stable situated near Room No.7 to defendant No.1 absolutely. 3. The plaintiffs have not shown how the testator owned the aforesaid properties. Consequently even if the Will is accepted by the plaintiffs as validly executed, the bequest made would fail if the title to the properties of the testator is not shown. If the plaintiffs accept the Will, the plaintiffs would have no share, right, title, interest or claim in the bequeathed properties. If the plaintiffs do not accept the Will and if the deceased is shown to have died intestate, the plaintiffs must show the title of the deceased before the plaintiffs can claim any relief. 4. Defendant No.1 who claims the entire properties under the Will has not appeared. Defendant No.1 is not even shown to be served the papers in the suit or writ of summons. No affidavit of service is filed. The plaintiffs claim reliefs of Receiver and injunction against defendant Nos.1 as well as 2. 5. Defendant No.2 is a developer. Defendant No.2 has obtained title inter alia to the lands on which the suit properties are stated to be situated from the original owners of the lands mentioned in the Deed of Conveyance dated 03.05.2008. 6. Defendant No.2 has shown the list of tenants/ 3 occupants on the land purchased by them. Defendant No.1 is shown against Item No.14 for Unit No.3 admeasuring 145.8 sq. ft. As such occupant defendant No.2 has agreed to give defendant No.1 alternate accommodation of 450 sq. ft. Defendant No.1 has surrendered his rights under such agreement and has been paid Rs.6 lacs under a Deed of Surrender-cum–Cancellation dated 19.07.2008. He is shown to have executed a receipt for Rs.6 lacs. 7. The claim, if any, of the plaintiffs can be only against their own son and brother, defendant No.1 in respect of amount received by defendant No.1, if it is received to the exclusion of the plaintiffs. 8. The plaintiffs have not shown any legal right to claim any relief in respect of the properties described in the plaint as one single property. The suit is filed in collusion with defendant No.1 who is not even shown to be served. 9. The Notice of Motion is dismissed. 10. The R & P is lost/misplaced. The plaintiffs have submitted a xerox copy of the plaint and proceedings. This copy shall be taken as reconstructed R & P. (R. S. DALVI, J.)