1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION NOTICE OF MOTION NO.168 OF 2009 IN TESTAMENTARY SUIT NO.61 OF 2009 IN TESTAMENTARY PETITION NO. 233 OF 1988. Mr. Bryan John Lobo & ors ...Plaintiffs. Vs. Mrs. Cressie S Vaz ...Defendant. Mr. Suresh N. Manoti for the Plaintiff. Mr. Vincent E. Pereira, , for the Defendant. CORAM :- ANOOP V. MOHTA, J. DATED :- 2nd March, 2010. P.C.- 1. This Notice of Motion is taken out by defendant with basic prayer to dismiss the suit as ‘abated’. In view of the fact that the original petitioner the sole executor and beneficiary, who has taken probate petition, expired, therefore, in view of the judgment in Thrity Sam Shroff - vs- Shriraz Byramji Anklesaria and anr (2007 (4) Mh L.J),57). By consent which is recorded in the order dated 30th November,2006, the legal heirs have been brought on record and the present petition is also converted into suit for Letter of Administration. The caveator defendant is not disputing this proposition. His submission is that the plaintiff should 2 file fresh suit for Letter of Administration and the present petition/suit be dismissed as prayed. 2. The Division Bench has nowhere considered or dealt with the aspect of bringing legal heirs of beneficiary in a suit for Letter of Administration, by consent parties have agreed to convert the said proceeding into suit of Letter of Administration and sole executor/beneficiary have been brought on record. 3. Present Motion, therefore, taken out by the defendant after giving consent based upon which the proceedings have been converted just can not be permitted to reopen the issues and the prayer to declare the suit as abated on the same ground. 4. The judgment so relied in my view is totally distinct and different on facts as well as law. There is no bar bringing legal beneficiaries on record in a suit for Letter of Administration. Resultantly the present Motion as taken out is dismissed. No costs. (ANOOP V. MOHTA, J.)