1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION NOTICE OF MOTION NO. 60 OF 2008 IN TESTAMENTARY SUIT NO.68 OF 2006 Sou Namrata Vinay Tamhane ..... Plaintiff. V/s Mrs. Shilpa Shashikant Chitre and anr. ..... Defendants And Chembur Crystle Co-operative Housing Society Ltd. ...... Respondents. ------ Mr. S.G. Deshmukh for the plaintiff/applicant in support of the notice of motion. Mr. Y.S. Bhate for defendant Nos. 1 and 2. Mr. D.S. Jadhav for respondents. ------- CORAM: V.M. KANADE, J. DATE : 10th SEPTEMBER, 2008 P.C.: 1. Heard the learned Counsel appearing for the plaintiff and the learned Counsel appearing for the defendants and respondent – Society. 2. Plaintiff has filed a Testamentary Petition in 1998 for probate of the Will of her deceased father-in-law. 2 Defendant Nos.1 and 2 herein are the sister-in-law and brother-in-law of the plaintiff respectively. They have challenged the execution of the said Will and, therefore, the Testamentary Petition was converted in to a suit. 3. It is the case of the plaintiff that the plaintiff and defendants were residing alongwith the father-in-law of the plaintiff in Flat No.127, Building No.4, Sahakar Nagar No.3, Chembur, Mumbai – 400 071 and, after the death of her father-in-law, she continued to reside in the said flat alongwith her family members. It is stated in the affidavit in support that the respondent – Society intends to demolish the said building and construct a new building on the said plot of land. The Society has also offered an alternative accommodation to the plaintiff alongwith the compensation for demolishing the said building. 4. It is submitted by the learned Counsel for the plaintiff that the plaintiff may be permitted to enter into agreement with the Society for the purpose of allotment of the alternative accommodation which is going to be allotted by the Society and she may be permitted to stay in the alternative accommodation which is provided by the Society, subject to the final outcome of the suit. The learned Counsel appearing on behalf of the defendants submit that this should be without prejudice to the rights 3 and contentions of the defendants in the suit and, in the event, defendants succeed in the said suit, they shall have an equal right in the new flat which may be allotted to the plaintiff and also in the compensation that is paid to the plaintiff. The learned Counsel for the respondent – Society also has no objection for entering into the said agreement with the plaintiff, subject to the final outcome of the suit. 5. In the result, notice of motion is allowed and (i) Respondent – Society may enter into necessary agreement with the plaintiff in respect of demolition of the existing building and allotment of the flat in new building, as proposed by the said Society, (ii) the Society may execute a necessary agreement with the plaintiff for proceeding further in the project of demolishing the existing building and of constructing a new building and of allotting the premises in the new building to the existing owners and occupiers of the old building, subject to the outcome of the suit, (iii) the Society also agrees and undertakes to make provision for the plaintiff for alternative accommodation for residence during the time when the new building is being constructed, (iv) plaintiff undertakes to deposit in this Court an amount of compensation which has been paid by the Society in the event the suit filed by the plaintiff is dismissed. 4 6. It is clarified that this order is passed subject to the outcome of the suit and subject to the rights and contentions of defendant Nos. 1 and 2 herein. It is further clarified that in the event the plaintiff's suit is dismissed, the defendants shall have a right to stake their claim in respect of the said flat. 7. Notice of Motion is disposed of in the aforesaid terms. (V.M. KANADE, J.) 5