1 NMT.37.2011-TS.47.2010-PTN. 240.2010.sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 37 OF 2011 IN TESTAMENTARY SUIT NO. 47 OF 2010 IN TESTAMENTARY PETITION NO.240 OF 2010 Pushpaben Natvarlal Kansara ...Plaintiff/Ptnr. Vs. Mukund Natvarlal Kansara ...Defendant/Respndt. Mr. D.R. Mishra for the Plaintiff Ms. Shakuntala Joshi for Defendant CORAM : SMT. ROSHAN DALVI, J. DATED : 8TH JUNE, 2011 P.C. : 1. This Notice of Motion is for dismissal of the Caveat of the Respondent and for proceeding with the Petition. The Petitioner is the widow of the deceased Natvarlal Mulchand Kansara. The Respondent is the son of the deceased. The Petitioner as well as the Respondent are the executors. The Respondent has not been allowed to act as the executor. The Respondent is not shown the original Will. The Respondent desires to act as executor. The Respondent is instead served with the citation as he is one of the heirs of the deceased. 2. The Counsel on behalf of the Respondent states that in fact the Petitioner as well as the Respondent have been jointly bequeathed the residential flat of the deceased and the Respondent would want to have the Will probated. 2 NMT.37.2011-TS.47.2010-PTN. 240.2010.sxw 3. Advocate on behalf of the Petitioner has shown certain evidence led in Suit No.27/2008 in the City Civil Court, Mumbai in which the Respondent has stated that he does not intend to apply for probate. That evidence does not dis-entitle the Respondent from applying for the probate, if he is also shown as the executor in the Will. 4. The Respondent has filed the Caveat because he has been served the citation and only on the ground that he has not been allowed to act as the executor. The Caveat is, therefore, misconceived. The Respondent has to take out an application for enforcing his executorship, if he is so desired. The filing of the Caveat shows challenge to the Will. The Respondent does not challenge the Will of the deceased. Hence the Caveat cannot be filed and must be dismissed. Prayer (a) of the Notice of Motion is, therefore, required to be granted. 5. However prayer (b) of the Notice of Motion cannot be granted simplicitor as prayed for. The Petitioner has merely applied for being allowed to proceed with the Petition. The Petitioner alone cannot proceed with Petition. Since the Petitioner alone is not the sole executor of the Will the Petitioner shall have to proceed with the Petition along with the Respondent, the co-executor. 6. The Petitioner shall amend the Petition to show such fact. The Petition shall proceed thereafter and the probate shall be issued jointly to the Petitioner and the Respondent. 7. Notice of Motion is disposed off accordingly. (SMT. ROSHAN DALVI, J.)