VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION No. 102 OF 2007 IN TESTAMENTARY SUIT NO.9 OF 2007 IN TESTAMENTARY PETITION No.223 OF 2006 Arjun Saghal & Anr. Applicants Vs. Radhika Bhargava & Ors. Respondents Mr. A. S. Vakil i/b M/s. Minocheher Hiralal & Co.for the applicants. Mr. Pradeep Bakhru i/b M/s. Divya Shah & Asso. for the original plaintiffs. Ms. H.I. Advani i/b S.A. Khan for respondent No.4. Mr. Gaurang Mehta, for caveator. CORAM : D.G. KARNIK, J. DATE : APRIL 10, 2008 P.C. P.C. P.C. : 1. Applicants are not parties to the testamentary suit for probate. According to the applicants, they are nephew and niece of the deceased Malati Srivastava, and claim to be her heirs. According to them, deceased Malati Srivastava by her will has not disposed of her - 2 - entire property and the present applicants claim as heirs the residue of her estate. They have therefore, filed this motion for a direction to the plaintiffs to distribute the undisposed property of the deceased which according to them is not the subject matter of the bequest under the will. 2. In my view this cannot be done in a testamentary suit. Testamentary court is concerned only with the legality and validity of the will i.e. whether it is the last will of the testator and whether the will is made in accordance with law. Question of title to and right to possess it is not decided in the testamentary suit. Similarly question of distribution of the residuary property, if any, not disposed of under the will cannot be a subject matter of the testamentary suit. The applicants cannot seek any relief for distribution/division or possession of the undisposed of property of the deceased in the testamentary suit. The applicants are however, free to adopt appropriate proceeding for recovery of the property which they claim to have acquired by succession. With this observaton, the motion is dismissed. - 3 - (D.G. KARNIK, J.)