1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION NOTICE OF MOTION NO. 99 OF 2009 IN SUIT NO. 40 OF 2006 IN PETITION NO. 824 OF 2000 Mr. Haridas D. Shukla. ... Deceased. Mr. Shailesh Umakant Shukla. ... Plaintiff. V/s. Mr. Indradeo Harihar Shukla. ... Defendant. Mr. A.K. Tripathi i/b. D.R. Mishra for the Plaintiff. Mr. P.N. Patwardhan for the Defendant. CORAM : S.C. DHARMADHIKARI,J. DATED : 16th SEPTEMBER 2009. P.C. :- This Notice of Motion is by the Plaintiff/Petitioner praying for dismissal of the Caveat dated 20th July 2006 filed by the Caveator Indradeo Harihar Shukla. 2. It is not disputed before me that the said Indradeo Harihar Shukla had filed a Petition for Probate of the Will dated 10th May 1999 allegedly left by the deceased. That Petition was numbered as Petition No.51 of 2000 and a Probate was issued in favour of the Defendant/Caveator in this Petition on 26th April 2000. 2 3. In these circumstances, the present Plaintiff/Petitioner filed a Misc. Petition being Misc. Petition No. 74 of 2000 for revocation of this Probate. He pointed out that he has filed the instant Petition and during the pendency of the same, the grant could not have been made. It is also not in dispute that In the Misc. Petition for revocation of the grant in favour of the Defendant/Caveator a Notice of Motion being Notice of Motion No.3252 of 2000 came to be moved and that was disposed off on 28th February 2002. 4. Subsequently, Misc. Petition No.74 of 2000 appeared before this Court (Hon’ble Mr. Justice D.K. Deshmukh) on 7th July 2006. The learned Judge, after hearing parties was of the opinion that the said Misc. Petition be heard alongwith the instant Suit. The learned Judge passed this order on the basis that the pleas raised by the Plaintiff in the said Petition and the reply thereto by the Defendant/Caveator would entail going into the genuineness of the Wills which have been relied upon. 5. In such circumstances, I am of the opinion that it will not be possible to acede to the submission of Mr. Tripathi that the Caveat in this case be dismissed. The Petitioner/Plaintiff states that the deceased left a Will dated 14th May 1999. Further, he is the legal heir of the deceased whereas the Defendant/Caveator has no caveatable interest. He is not the heir of the deceased. 3 6. All these issues cannot be gone into after this Court passed an order on 7th July 2006 in the Misc. Petition moved by the present Plaintiff/Petitioner for revocation of the grant of probate in favour of the Caveator/Defendant. Once the Court opined that the earlier grant being there and interest of justice demands that the parties be given opportunity to prove their rival cases based on the Will produced by them, then, it is apparent that the order of this Court has gained finality. That order being still in force and the affidavit in support of the present Motion itself raising arguable issues, it is not possible to grant any relief much less one prayed in the Notice of Motion. 7. In the result, the Notice of Motion fails and it is accordingly dismissed. However, dismissal of this Motion shall not be construed as expression of any opinion on the merits of the controversy and all contentions of both sides are kept open. Mr. Tripathi states that the Plaintiff would file the affidavit of documents and evidence in Testamentary Suit No. 40 of 2006 by 12th October 2009. Place the said Suit for directions with regard to admission and denial of documents on Wednesday, 14th October 2009. (S.C. DHARMADHIKARI,J.)