J.M.Tejam (Since Deceased)And ANR. v. B.M.Tejam And ANR

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

TESTAMENTARY AND INTESTATE JURISDICTION Digitally signed by Dhanappa I. Koshti Date:

2020.11.26 14:09:14 +0530 TESTAMENTARY SUIT NO. 7 OF 1998 Dhanappa I. Koshti IN TESTAMENTARY PETITION NO. 719 OF 1995 Malti Jagannath Tejam ...Plaintiff/Petitioner.

vs Balkrishna Mahadev Tejam & Ors. ...Defendants/Respondents WITH INTERIM APPLICATION (L) NO. 4850 OF 2020 .....

Ms Kusum G. Poojary for the applicant/plaintiff/petitioner. Mr. V.P.Shastri for defendant No.2.

.....

CORAM : B. P. COLABAWALLA, J.

(Through Video Conferencing) 25th NOVEMBER, 2020.

P.C. :

When this matter had come up on the earlier occasion, the learned advocates appearing for the plaintiff/petitioner as well as the learned advocates for defendant No.2/respondent No.2 had tendered Consent Terms dated 30th September, 2020 which were duly signed by the plaintiff/petitioner as well as defendant No.2/respondent No.2 and their respective advocates.

As far as defendant No.1 is concerned, it was stated that he has already given his no-objection by way of Consent Terms in Pg 1 of 3

High Court, Original Side, Suit No.2100 of 1982 for grant of probate to the present plaintiff/petitioner. This no objection is dated 21st January, 1999.

As far as defendant No.3 is concerned, he was joined to the above suit pursuant to an order passed on 26th August, 2004 in Chamber Summons No. 338 of 2004.

I had enquired with the parties as to why defendant No.3 had not signed these Consent Terms. In response thereto, the parties brought to my attention an order passed by this Court on 17th March, 2015 whereby the Registry was directed to issue a fnal notice to defendant No.3 to remain present before this Court on 23rd April, 2015. The order further stated that if defendant No.3 was not present on that date the caveat will be discharged and the matter will be directed to continue as an uncontested petition. On going through the record, I could not fnd that defendant No.3 was issued a notice as directed in the order dated 17th March, 2015. It is, in these circumstances, that on 26th October, 2020 I passed an order allowing the plaintiff to serve defendant No.3 through substituted service as contemplated under Order V Rule 20 Pg 2 of 3

of the Code of Civil Procedure, 1908. This has now been done as evidenced by the affdavit of service dated 21st November, 2020 fled by Pankaj Jagannath Tejam, the constituted attorney and son of the plaintiff/petitioner abovenamed. Despite service, none have appeared today on behalf of defendant No.3. In fact on going through the record I fnd that defendant No.3 has never appeared in this matter after being joined in the proceedings. Considering these facts, I am inclined to take the Consent Terms dated 30th September, 2020 on record. Accordingly, the said Consent Terms are taken on record and marked "X" for identifcation. The above suit as well as Interim Application (L) No. 4850 of 2020 are disposed of in terms of the Consent Terms. However, there shall be no order as to costs.

Considering that the plaintiff/petitioner is 83 years old, the offce is directed to process the grant of probate as expeditiously as possible and grant the same if it is otherwise found in order. This order shall be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned shall act on (B. P. COLABAWALLA ,J.)