ANIL DATTATRAY PARAB Vs. JAYADEV BAL THACKERAY

JUDGEMENT

(1.) By this Notice of Motion, the plaintiffs seek that the counter claim made by the defendant as pleaded in paragraphs 5 to 7, 9 and 126 to 132 of the affidavit in support of the caveat dated 12th February, 2013 be rejected as not maintainable being beyond the testamentary and intestate jurisdiction of this court.

(2.) Mr.Shah, learned counsel appearing on behalf of the plaintiffs invited my attention to various paragraphs of the affidavit in support of caveat which indicates that it is averred by the defendant that the defendant has 1/3rd share in all the immoveable and moveable properties known and unknown to him and seeks to make a counter claim in the said affidavit in support of the caveat in respect of his alleged 1/3rd share in all the properties of the deceased Mr.Bal K.Thackeray. My attention is also invited to the prayers in the affidavit in support of caveat by which the defendant has sought a declaration that the defendant is entitled to 1/3rd share in the entire estate and properties of Mr.Bal Keshav Thackeray and he is entitled to use, occupy, possess and enjoy such properties forming part of his 1/3rd share. The defendant also seeks appointment of a fit person as Commissioner to take inventory of all such properties and to divide the entire estate and properties of the deceased and grant 1/3rd share out of such properties to the defendant.

(3.) Mr.Shah learned counsel submits that this court does not decide the title in respect of the estate of the deceased and thus no such counter claim can be made in the affidavit in support of caveat. Learned counsel invited my attention to the provisions and particularly Rule 402 of the Bombay High Court (Original Side) Rules which provides for the procedure for filing of an affidavit in support of the caveat. My attention is also invited to Rules 397 to 400 of the Bombay High Court (Original Side) Rules. Learned counsel submits that since testamentary court cannot decide the issue of title in respect of properties of the deceased and the properties are not the subject matter of testamentary petition, no relief in respect of properties can be considered in affidavit in support of caveat and the same is beyond the jurisdiction of the testamentary court , the defendant who is directly or indirectly claiming share in the properties of the said deceased, such reliefs are beyond the scope and jurisdiction of this court.