Jayraj Jayant Salgaokar and Anr. Vs Jayanand Jayant Salgaonkar

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19-CST-39-2015.DOC

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JSN

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.39 OF 2015

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IN

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TESTAMENTARY SUIT NO.55 OF 2014

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IN

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TESTAMENTARY PETITION NO.281 OF 2014

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Jayraj Jayant Salgaonkar & Anr.…Plaintiffs
Versus
Jayanand Jayant Salgonkar…Defendant

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Mr. R.V. Pai, with Mr. A. Pai, Ms. N. Thakkar, i/b Bina Pai for the
Plaintiffs.
Mr. Snehal Shah, i/b Yatin R. Shah for the Caveator..
Dr. Santosh Raje, i/b Rajiv Jadhav for Petitioner No.2.

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CORAM:G.S. PATEL, J
DATED:22nd June 2016

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PC:-

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1.This is the 1st Plaintiff’s Chamber Summons for amendment.
Mr. Pai for the Applicant-1st Plaintiff seeks to amend the Petition to
delete one of the assets included in the Schedule of Assets annexed
to the Probate Petition. This is an immovable property at Dadar. It is
shown at Item 2 in that Schedule. There is also a second prayer to
amend the title of the Suit so as to transpose Plaintiff No.2 as the
2nd Defendant. That second amendment is not pressed.

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Page 1 of 4

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22 June 2016

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19-CST-39-2015.DOC

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2.It is some what strange that in this Chamber Summons the
two Plaintiffs seem to be opposing each other. I will, however, let
that pass for now, in view of the order I propose to make.

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3.Mr. Pai’s claim is that the immovable property in question at
Sr. No. 2 of the Schedule is one that was covered by clause 5 and
clause 6 of the Will. He says that in clause 5 there is no bequest as
such but merely a noting by the testator of past events or
transactions, or an expression of his desire for disposition of the
property in terms of a decision made inter vivos.

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4.Mr. Shah for the Caveator-Defendant contends that the claim
in the Chamber Summons is not only a claim for title to the
immovable property, but is a claim that is adverse to the estate. This
requires either that the Petition be dismissed or that Plaintiff
Petitioner No.1 be transposed as Defendant No.2.

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5.I believe neither order is necessary. It is sufficient to note that
the grant of Probate in this matter cannot and will not determine
title to any property. It cannot. That is well settled. Questions of
title are not decided in probate proceedings. The reason is self-
evident: the subject-matter of any such proceeding is not any
particular property but only the Will and, specifically, whether or
not the Will in question is proved in its solemn form. Consequently,
whoever claims title to the Dadar property, be it the 1st Plaintiff or
the Defendant, will necessarily have to file an civil suit for
appropriate reliefs to establish title. It is sufficient for the purposes
of this Chamber Summons to note that all questions, contentions

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Page 2 of 4

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22 June 2016

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19-CST-39-2015.DOC

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and submissions in that regard are specifically kept open on all sides.
None of these are in any way determined by this order on the
Chamber Summons, and, further, they cannot and will not be
determined by the final order on the Probate Petition.

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6.Mr. Pai accepts that this is sufficient for his purposes. He
seeks leave to withdraw the Chamber Summons with liberty to
adopt suitable civil proceedings. Leave granted with liberty as
prayed. Liberty also to the other parties to file their own suits for the
same purpose, if so advised.

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7.Mr. Shah submits that the withdrawal of the Chamber
Summons should also not impede or affect the Defendant’s right to
contend that the Petition should be summarily dismissed, or that the
1st Plaintiff should be transposed as a defendant, on account of his
allegedly having set up a title adverse to the estate. It is clarified that
the Defendant’s rights and contentions in that regard are also
expressly kept open, and the Defendant is at liberty to file a Motion
or other appropriate application for such relief; and to submit that
an issue in that behalf should be framed in the suit; or both.

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8.The Chamber Summons is disposed of in these terms with no
order as to costs.

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9.Finally, I must observe that it is not open to the two Plaintiffs
to engage separate representation and also continue as co-Plaintiffs.
By the next occasion, I expect them to arrange their affairs so that
both Plaintiffs are represented by only one set of Advocates. Mr.

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Page 3 of 4

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22 June 2016

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19-CST-39-2015.DOC

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Pai’s attorneys and Mr. Raje cannot file separate vakalatnamas for
the two Plaintiffs, as our Rules do not permit any such thing. One of
the Plaintiffs may elect to be transposed as a Defendant, but both
Plaintiffs cannot have separate representation as co-Plaintiffs. I am
making it clear that unless this is done by the next date, I will dismiss
the suit peremptorily only on this ground. The only reason for not
doing so today is because Mr. Pai’s Chamber Summons sought,
inter alia, the transposition of Plaintiff No.2 as Defendant No.2, a
relief that was ultimately not pressed.

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(G. S. PATEL, J.)

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Page 4 of 4
22 June 2016

Jayraj Jayant Salgaokar and Anr. v. Jayanand Jayant Salgaonkar

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Jayraj Jayant Salgaokar and Anr. v. Jayanand Jayant Salgaonkar

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