:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY TESTAMENTARY TESTAMENTARY & INTESTATE CIVIL JURISDICTION & INTESTATE CIVIL JURISDICTION & INTESTATE CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO. 118 OF 2005 OF MOTION NO. 118 OF 2005 OF MOTION NO. 118 OF 2005 IN IN IN SUIT SUIT SUIT NO. 19 OF NO. 19 OF NO. 19 OF 1999 1999 1999 IN IN IN PROBATE PROBATE PROBATE PETITION NO. 864 OF 1996 PETITION NO. 864 OF 1996 PETITION NO. 864 OF 1996 Mrs. Maise Fernandes Alias Mrs. M. Fernandes. ... Deceased. Captain Allan J. Couto & Anr. ... Petitioners/Plaintiffs. V/s. Mrs. Rita Pinto. ... Caveatrix/Defendant. Mr. Shyam Mehta i/b. Fedral Rashmikant for the Petitioners/Plaintiffs. Mr. Zal Andhyarujina i/b. R. Kanthawala for the Caveatrix/Defendant. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 13TH 13TH 13TH MARCH 2009. MARCH 2009. MARCH 2009. P.C. P.C. P.C. : : : . Mr. Andhyarujina, learned Counsel appearing for the Caveatrix/Defendant states that the affidavits which have been filed but they have not taken on record as affidavit in lieu of examination in chief of the Defendant and her two witnesses should be treated as taken off from the file inasmuch as one of the deponent has expired. The Caveatrix/Defendant Ms. Rina Pinto and her witness Joseph D’Souza be permitted to tender their Affidavits in lieu of examination in chief to obviate any objection with regard to the contents of the same. 2. Mr. Andhyarujina seeks leave to take back the :2: affidavits with liberty to place on record fresh affidavits in lieu of examination in chief of the Caveatrix/Defendant and her witness Mr. Joseph P. D’Souza. 3. In the light of this statement of Mr. Andhyarujina, there is no necessity of entertaining or going into the objections raised by Mr. Mehta, learned Counsel appearing for the Petitioner on the admissibility of these affidavits and some of the portions thereof. Leaving open all contentions of both sides in that behalf, this Motion is disposed off. In the light of Mr. Andhyarujina’s statement recorded above, the Caveatrix is at liberty to take back the affidavits filed as her affidavit of evidence so also that of her witness Mr. Joseph D’Souza, with liberty to file fresh affidavits. The Notice of Motion is disposed off. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)