The main legal point established in the judgment is that the testamentary court does not have jurisdiction to consider claims related to the title and distribution of properties of the deceased, as it is not the subject matter of the testamentary petition.

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.

4. Ms.Sarnaik, learned counsel appearing on behalf of the defendant on the other hand placed reliance on the judgment of this Court in case of NamdeoMali vs. Jayram Barde and others 2008 (2) Bom.C.R. 178 in support of her submission that the reliefs claimed in the affidavit in support of the caveat is in the nature of the petition of letters of administration and it is prayed that only in the event of this court refusing to grant probate in favour of the petitioner, it would be presumed that the said deceased died intestate and in that event all the legal heirs of the said deceased would be entitled to 1/3rd share each in the estate of the said deceased. Learned counsel also placed reliance on the judgment of the Division Bench of this court delivered on 19th January, 2011 in case of Smt.VatsalaSrinivasan vs. Narisimha Raghunathan & Anr. in Appeal No. 1009 of 2010 in support of the submission that in the event of the petition for probate being rejected, at that stage to avoid any multiplicity of the proceedings, this court shall convert the affidavit in support of the caveat as petition for letters of administration.

5. Learned counsel also placed reliance on Rule 376 of the Bombay High Court (Original Side) Rules, and would submit that a party is entitled to file application for letters of administration in cases where deceased has died intestate. It is submitted that the right of the defendant to file such application cannot be taken away and to avoid any multiplicity of the proceedings, the affidavit in support of the caveat can be considered as petit