1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3204 OF 2009 IN SUIT NO.3477 OF 1996 Ujwala Raje Vikram Shah & Anr. ...Plaintiffs Vs. Fazal Rehman Pir Saheb & Ors. ...Defendants Mr. Zubin Behramkamdin with Mr. Kal Tambori and Ms. Sushma Nagaraj and Ms. Anusha i/b. Bharucha & Partners for Plaintiffs Mr. M.M.Vashi i/b. M.P. Vashi & Asso., for Defendant Nos.1 and 2. CORAM : SMT. ROSHAN DALVI, J. DATED : 3RD MAY, 2010 P.C. : 1. This Suit is filed essentially to challenge a Will left by the grandmother of Plaintiff No.1. The Plaintiffs have applied for Letters of Administration of the estate of the deceased grandmother of Plaintiff No.1. Letters of Administration have been granted by this Court in respect of certain properties of the deceased grandmother of Plaintiff No.1 shown therein. The Will which is stated to have been executed in Bombay and which is sought to be propounded by Defendants 1 and 2 and which is challenged in this Suit has shown certain further properties of the deceased. The Will propounded by Defendants 1 and 2 shall therefore, have to be probated 2 under Section 57(a) of the Indian Succession Act. Until that is done, Defendants 1 and 2 cannot act upon the Will or represent themselves as Executors under the Will. 2. The Suit which has been filed in 1996 has sought an Inventory to be made by the Court Receiver upon his initial appointment as Court Receiver. The report of the Court Receiver of his visits to one of the properties which is in Shangrila, 27A Carmichael Road, Mumbai 400 026 is sought to be relied upon. The report shows a Site Report prepared by the Court Receiver attached to the report. The Site Report is not produced by the Plaintiffs. 3. Mr. Behramkamdin on behalf of the Plaintiffs contend that a report of Jeweller in respect of certain silverware is the only report annexed to the Court Receiver’s Report. That does not appear to be correct since the Court Receiver’s Report has made a reference to a Site report as also the Inventory prepared by the Jeweller as the technical expert and certain Inventory prepared by a Firm of Architects. What is annexed at the end of the Court Receiver’s Report is only an Inventory prepared by the Jeweller. The Site Report would show what Inventory the Court Receiver took in respect of the furniture, fixtures and movables in the aforesaid flat for which he attended at that premises. 4. Even if no Inventory was annexed to the Court Receiver’s Report made as far back as 1996 nothing has been produced until this Notice of Motion was taken out in 2009 as to why the Inventory is not prepared and what steps the Plaintiffs have taken for that failure. 3 5. Under these circumstances a fresh Inventory is not required to be got prepared once again at the instance of the Plaintiffs. However Mr. Vashi fairly concedes that Defendants 1 and 2 who were residing with the deceased prior to the death of the deceased and have continued to reside in the aforesaid flat shall mention on affidavit all the items of furniture, fixtures and movables in the flat stating which of them belong to the deceased and which have been purchased by them. Such an affidavit shall be filed within 6 weeks. The Defendants shall thereafter not sell the articles of furniture, fixtures or movables in the Suit flat pending the Probate of the Petition and pending this Suit. 6. Defendants 1 and 2 rely upon the Will of the deceased executed in Mumbai. That Will would be required to be Probated under Section 57(a) of the Indian Succession Act to be acted upon by the Defendants. 7. Consequently, the Defendants 1 and 2 shall not deal with, dispose off, alienate, transfer or encumber, part with possession any of the properties mentioned in the Will which they seek to so do as Executors of the Will or hold themselves out as such Executors or beneficiaries under the Will of the deceased or use any signs or emblems of the deceased for any purpose until they obtain Probate of her Will for which Petition has already been filed in November 2009. 8. Notice of Motion is disposed off accordingly. (SMT. ROSHAN DALVI, J.)