Savita W/O Naresh Kheria(Caveator) And ... vs Vikas Vijay Seksaria on 5 October, 2020

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Bombay High Court

Savita W/O Naresh Kheria(Caveator) And ... vs Vikas Vijay Seksaria on 5 October, 2020

Bench: B. P. Colabawalla

                                                                                           7.cts.l.3733.2020.doc

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                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               TESTAMENTARY AND INTESTATE JURISDICTION
Dhanappa
I. Koshti                  CHAMBER SUM IN TESTAMENTARY PET (L) NO. 3733 OF 2020
Digitally signed by                             IN
Dhanappa I. Koshti
Date: 2020.10.07              TESTAMENTARY PETITION (L) NO. 3195 OF 2020
17:17:25 +0530




                      Mrs. Savita w/o Naresh Kheria             ...Applicant/orig.caveator
                                    vs
                      Mr. Vikas s/o late Vijaykumar P. Seksaria ...Resp./Orig.Petitioner
                                 and
                      Mrs. Savita w/o Naresh Kheria             ...Applicant/Org.Caveator

                                                     WITH
                                         INTERIM APPLICATION (L) NO. 3739 OF 2020
                                                       IN
                                         TESTAMENTARY PETITION (L) NO. 3195 OF 2020

                                            .....
                      Mr A.M.Saraogi for the applicant
                      Rina H. Pujara and Randhir Kale for the Petitioner.

                                                               .....
                                                 CORAM :          B. P. COLABAWALLA, J.

(Through Video Conferencing) 5th OCTOBER, 2020.

P.C. :

This Chamber Summons has been fled by the applicant/ caveator in the above Testamentary Petition seeking the following reliefs ;

"(a) that pending the hearing and final disposal of the probate petition/ proceedings filed by the original petitioner, the original petitioner be restrained by an order and injunction of this Hon'ble Court from in any manner creating any third party rights and parting with possession in respect of movable and immovable properties as mentioned in the list in Pg 1 of 3

7.cts.l.3733.2020.doc any manner whatsoever;

(b) that pending the hearing and final disposal of the present probate proceedings, the Court Receiver, High Court, Bombay be appointed as Receiver in respect of the properties mentioned in the list annexed with the present application appearing at Exhibit-D to the present application, save and except Flat No. 103, 1st Floor, Wing A/11, Siddharth Nagar, Bldg.

No.3 CHS Ltd. Western Express Highway, Borivali (E) Mumbai - 400 066 with a direction to divide all the income generated out of the same between the applicant and the original petitioner in the ratio of 50:50 with such further direction as this Hon'ble Court may deem fit and proper in the matter."

2 On going through the Chamber Summons, I fnd that the prayers sought for cannot be granted in the Testamentary Petition. This has been clearly held by a single Judge of this Court in the case of Rupali Mehta Vs Tina Narinder Sain Mehta reported in 2006(6) Mh.L.J. 786 as well as by a Division Bench of this Court in the case of Ramchandra Vs Vithalrao reported in 2011(4) Mh.L.J. 50. As held in these two judgments, the Probate Court is only concerned with the question as to whether a will of the deceased is genuine and that it has been made voluntarily. It cannot grant interlocutory relief in respect of the property which form part of the estate of the deceased prior to the grant of the probate. In view of the aforesaid two decisions no relief can be granted in the above Chamber Summons. The applicant/ caveator is free to seek these reliefs in any substantive proceedings. Mr. Saraogi, the learned counsel appearing on behalf of Pg 2 of 3

7.cts.l.3733.2020.doc the applicant/ caveator states that they have already fled their substantive proceedings before the City Civil Court, Dindoshi. The applicant/ caveator herein, who is the plaintiff before the City Civil Court, Dindoshi, will be at liberty to seek these reliefs in those proceedings. If such reliefs are sought for, the same shall be decided by the City Civil Court, Dindoshi on its own merits and in accordance with law. With the aforesaid clarifcation, the Chamber Summons is dismissed. No order as to costs.

3 This order shall be digitally signed by the Private Secretary/ Personal Assistant of this Court. All concerned shall act on production by fax or e-mail of a digitally signed copy of this order.

(B. P. COLABAWALLA ,J.) Pg 3 of 3

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