- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1616 OF 2009 in SUIT NO.3149 OF 2009 Rita Mahesh Dadarkar & ors .. Plaintiffs vs Yesubai Gopinath Dadarkar & ors .. Defendants .. Mr.Rakeshkumar i.b Mr.V.S.Jabra for Plaintiffs Mr.R.N.Kachare for Defendant nos.1 to 5 Ms.J.M.Sidhwa i.b M/s Bina Rao for Defendant no.6 Mr.Rajiv Mane AGP for Defendant nos. 12 and 14 CORAM: R.V.MORE,J DATED: November 16, 2009 P.C. 1. Heard learned counsel for the respective parties. The present Chamber summons is taken out by the plaintiffs to amend the plaint and the notice of motion as per schedule I annexed to the said Chamber summons. 2. The plaintiff has filed a suit challenging the deed of dissolution of partnership firm between the plaintiff’s predecessor and defendant nos. 1 to 5. The plaintiffs have also claimed partition of the suit property. During the pendency of the suit to be precise on 1.9.2009 the defendant no.1 died. It is the case of the plaintiffs that the defendant no.1 is mother-in-law of plaintiff no.1 and and mother of plaintiff nos. 2 and 3 and she executed a will in the year 1989 bequeathing her share in the joint family property in favour of - 2 - plaintiff’s predecessor in title and defendant nos. 1 and 3. Therefore, it was claimed that name of defendant no.1 stood deleted and the plaintiffs also claims that their share has been increased from 1/8th to 1/4th. 3. By this Chamber summons the plaintiffs wants to introduce amendment and thereby challenge the agreement dated 10.11.1999 and 7.5.2003 entered into by defendant nos. 3 to 6. Mr.Kachare learned counsel for defendant nos. 1 to 5 opposed this Chamber summons on the ground that the plaintiffs have not obtained probate of the so called will. He also submitted that the amendment was aimed at challenging the document as stated on 10.11.1999 and 7.5.2003 between the defendant nos. 3 and defendant no.6 are concerned the same is barred by law of limitation. 4. The amendment sought by the plaintiffs are not contrary to the contentions in the plaint. The plaintiffs by the proposed amendment are not making out a new case. So far as defendant nos.1 to 5’s contention that the plaintiffs have not obtained probate to the will is concerned, the same is without any substance in as much as for the purpose of considering the amendment, merits of the amendment cannot be gone into. The defendants are always entitled to oppose claim of the plaintiffs that they have inherited property of defendant no.1 by virtue - 3 - of the will and can be contested in the suit. 5. So far as defendant nos.1 to 5 ‘s opposition to the proposed amendment challenging the agreements dt 10.11.99 and 7.5.2003 on the ground of limitation are concerned, I feel that on this ground amendment cannot be rejected. The issue of limitation in this regard can be kept open to be decided at the time of hearing of the suit and amendment in this regard can be granted subject to law of limitation. 6. Chamber Summons is accordingly allowed in terms of prayer clause (a). Necessary amendment be carried out by the plaintiffs within a period of two weeks from today and serve the amended copy on defendants thereafter. Needless to mention that the defendants are entitled to file additional affidavit. Chamber Summons is disposed of. Notice of Motion to appear on board on 2.12.2009. R.V.More, J - 4 -