:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4652 OF 2006 1. Bernard Andrew Barretto and ors. ..Petitioners (Org. Applicants) Vs. 1. Mrs. Libertta Abel Rodriques and ors. ..Respondents Mrs. Nilima V. Sanglikar for petitioners. Mr. Sameer R. Bhalekar for respondent nos.1 and 2. Mr. Clive D’Souza for respondent no.3. Mr. Birendra Saraf with Ms. Krishna Tanna for respondent no.4. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. Date : July 25, 2006. Date : July 25, 2006. Date : July 25, 2006. P.C.: P.C.: P.C.: 1. Heard Mrs. Sanglikar the learned counsel for the petitioners. 2. Rule. Respondents waive service. 3. As the petition impugns an interlocutory order passed in a pending suit, the petition is taken up for final hearing forthwith. :2: 4. The petitioner no.1 is the brother of respondent nos.1 and 2 and petitioner nos.2 and 3 are the widows of the two late brothers of petitioner no.1 and petitioner no.4 is the sister of petitioner no.1. The petitioners had submitted an application i.e. Chamber Summons No.231 of 2006 in S.C. Suit No.3849 of 2004 filed by the present respondent nos.1 and 2 and prayed for being impleaded as the additional defendants. The learned Judge of the City Civil Court at Mumbai was pleased to dismiss the said Chamber Summons on 9/6/2006 and hence this petition. 5. Late Mr. Andrew Avelino Barretto and his wife late Luiza Andrew Barretto begot four sons and three daughters i.e. Philip Andrew Barretto, Bernard Andrew Barretto, Joseph Andrew Barretto, Olan Andrew Barretto, Elfreda A. Mendonca, Mable J. D’Souza and Margaret R. Caskar. On the demise of Andrew Barretto his widow Luiza started occupying the part of the suit properties i.e. Mithaiwala Bunglow and it appears that she executed a Will on or about 21/4/1982. In Testamentary Petition No.540 of 1989, this court by its order dated 11/3/1993 was pleased to appoint Mr. :3: Shashikant Sitaram Junnerkar as the Sole Executor of the said Will. 6. The plaintiffs have filed S.C. Suit No.3849 of 2004 seeking a declaration that the plaintiff no.1 is the absolute owner and has acquired absolute title in respect of the suit property i.e. land bearing CTS Nos. 377, 378, 379, 380, 381, 382, 425, 416, 422, 424, 326, 327, 328, 371(Pt), 374 and 375 admeasuring in aggregate 29,685.61 Sq. Mtrs. known as "Barretto Compound", located at village Valnai, Taluka Borivali, Malad (West), Near Link Road, Mumbai - 400 064. The petitioners filed Chamber Summons No.231 of 2006 praying for being impleaded as the additional defendants as they claimed that the plaintiffs could not pray for such a relief in exclusion of the applicants. The learned Judge of the trial court noted that the plaintiffs had prayed for declaration and perpetual injunction on the basis of the Will executed by the mother of plaintiff no.1 in her favour and she also claimed to have obtained a probate. The court also noted that the plaintiffs were claiming to be in exclusive possession of the suit property and :4: were having title to the suit land exclusively. The applicants said that it was a joint possession and joint occupation and the Will could not be the only document to decide the inter se rights of the children i.e. four sons and three daughters of late Andrew Avelino Barretto. As per the applicants the suit property belonged to Andrew Avelino Barretto i.e. the father and the mother derived the title on demise of the father and it could not be called her exclusive self acquired property. These are the issues which will have to be decided in the pending suit after hearing all the offsprings of the couple, namely, late Andrew Avelino Barretto and Luiza and not in exclusion of any of his heirs. The probate prima facie shows that Mr.Shashikant Sitaram Junnerkar has been appointed as the Sole Executor of the Will of Mrs. Luiza Merry Barretto and the said probate cannot be treated to be an order either granting or deciding the exclusive rights in respect of the suit properties to any of the heirs. These issues will have to be decided by the trial court in the pending suit after considering the evidence and the law. It is not necessary that the petitioners-applicants are required :5: to file a separate suit and such an option would unnecessarily result into multiplicity of suits before the trial court. 7. Hence the petition is allowed and the impugned order is hereby quashed and set aside and Chamber Summons No.231 of 2006 is hereby allowed. 8. Rule is made absolute accordingly with no order as to costs. (B.H. Marlapalle,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.)