1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Chamber Summons No.34 of 2009 with Notice of Motion No.60 of 2009 in Testamentary Suit No. 63 of 2002 in Testamentary Petition No. 496 of 2002 Smt. Sheela Kisan Mhatre ..Plaintiff vs. Smt.Kesharbai S.Mhatre ..Defendant and 1 Mr.Arun Kishore @ Kisan Mhatre and others ..Applicants Prop.Petitioners Nos. 1 to4 and 1 Mr.Prakash Sumant Mhatre and others ..Respondents (Proposed deft. Nos. 1 to 7) Mr.Mayur Khandeparkar i/b Mr.Rohit Shetty for applicants. Mr.J.M.Chodankar for respondent nos.1 to 3 CORAM: S.J.KATHAWALLA J. 11th June, 2009 P.C. 1 This Chamber Summons is taken out by 2 the heirs of the deceased petitioner Sheela Kisan Mhatre who expired on 15th September, 2007 for substituting themselves as the petitioners/plaintiffs. It is also contended by the learned Advocate appearing for the applicants that the respondent in the testamentary suit Smt.Kesharbai Suman Mhatre expired on 26th April, 2005 and the proposed respondents be allowed to be substituted as defendants in the testamentary suit no.63 of 2002. The applicants have also sought condonation of delay of 190 days and for setting aside the abatement of the present proceedings. 2 In the affidavit in support of the Chamber Summons in paragraph 6 of the affidavit in support of the Chamber Summons the applicants have inter alia stated : these applicants reserve their right to challenge the claim of the respondents in projecting 3 themselves as the heirs of the deceased caveator. I say that the applicants, without prejudice to their rights to challenge the claim of the respondents as heirs of the deceased caveators never the less pray that the respondents herein be allowed to be substituted in place of the original caveators and it is prayed accordingly. In view of the decision of the Hon ble Supreme Court of India in Jaladi Suguna (Dead) through L.Rs Vs. Satya Sai Central Trust and others reported in 2008(8) SCC 251, the applicants cannot be allowed to reserve their right to challenge the claim of the respondents in projecting themselves as heirs of the deceased caveatrix and the issue as to whether the respondents are heirs of the deceased caveatrix has to be decided at this 4 stage i.e. at the stage of deciding this chamber summons. 3 After some arguments at length, the learned Advocate for the applicants informed the Court that the applicants have no objection in accepting the respondents as heirs of the deceased caveatrix provided respondent no.1 i.e. Prakash Suman Mhatre makes a statement that he is the son of Suman and Kesharbai Mhatre and that the said Kesharbai (caveatrix) was the wife of Suman Mhatre. Shri Prakash Suman Mhatre is present in Court and has stated before the Court in the presence of his Advocate that he is the son of Suman and Kesharbai Mhatre and that Kesharbai was the wife of Suman Mhatre. The said statement is accepted. In view thereof, the learned Advocate for the applicants submit that he has no objection if the chamber summons is made absolute amongst others in terms of prayer clause (b) of the 5 Chamber Summons without reserving any liberty in favour of the applicants to contend in future that the respondents are not the legal heirs of the deceased caveatrix i.e. Kesharbai Suman Mhatre. 4 In view of the above, chamber summons is made absolute in terms of prayer clauses (a), (b) and (c). In view thereof the Notice of Motion No.60 of 2009 taken out by the applicants for cross examination of Prakash Suman Mhatre stands disposed of with no order as to costs. The applicants shall carry out the amendment to the testamentary suit within two weeks from today and serve a copy of the amended plaint on the newly added defendants within a week thereafter. 3 List the suit for directions on 2nd July, 2009. (S.J.KATHAWALLA J.)