Important Point:- If a party comes to the Court with unclean hands, which in this case the plaintiffs have, the party should be dealt with very strongly and substantial costs also should be imposed on the parties. Plaintiffs to pay a sum of Rs.2,00,000/- as cost to the applicants in the Notice of Motion and also donate sum of Rs.3,00,000/- to the Army Welfare Fund.

1. This Notice of Motion is taken out by the caveators for, (a) dismissal of the Petition/rejection of the Petition under Order VII Rule 11 of the Civil Procedure Code as no right or interest whatsoever accrues to the Petitioners to seek relief in respect of the grant of the above Petition No.3 of 2015 and (b) the applicants are also praying for initiation of perjury proceedings against the petitioners.

2. The prayer clause (a) is split into two parts, i.e., (i) dismiss the Petition as no right or interest whatsoever accrues to the petitioners or

(ii) reject the Petition under Order VII Rule 11 of the Code of Civil Procedure 1908. Mr. Kurup for the petitioners submitted that this being a testamentary Petition, the question of order VII Rule 11 does not arise and Hindu Succession Act is a code by itself and Code of Civil Procedure does not apply.

I am not going into part (ii) of Mr. Kurup's submission because I am disposing of this Motion on part (i) itself. I am dismissing the Suit for reasons as mentioned below.

3. One Ms. Urvashi Chhabda, a female, died on 09.11.2014 in Mumbai. At the time of her death the deceased had a fixed place of abode at Malbar Hill, Mumbai. The petitioners are the maternal uncle (petitioner No.1) and maternal aunts (petitioner No.2 and 3) of the deceased. In paragraph 4 of the Petition, it is stated that the deceased left as her surviving heirs and next-of-kins, as per schedule II under Section 8 r/w Section 9 of the Hindu Succession Act, only three persons viz; the three petitioners herein. It is also stated that the mother of the deceased and the father of the deceased, predeceased the deceased. It is also stated that the deceased was the only child of her parents and was a spinster at the time of her death and had no other legal heirs from her paternal side, save and except the legal heirs from the maternal side (the petitioners) as mentioned herein above. The petitioners have accordingly sought grant of letters of administration without will in favour of the petitioners with respect to the property of the deceased.

4. The applicants herein are the first cousins of the deceased from her paternal side. The father of the deceased one Late Balkrishna Ladhamal Chhabda had a brother Late Surjitlal Ladhamal Chhabda and the applicants are the two daughters of the said Late Surjitlal Ladhamal Chhabda. In reply to the Notice of Motion the petitioners do not deny the relationship of the applicants to the deceased but according to the petitioners the applicants are not legal heirs of the deceased as per section 8 r/w section 9 of the Hindu Succession Act, 1956 (the said Act). After the Petition was filed the applicants entered caveats. After the caveats were entered Petition was converted into Suit and issues were framed on 17.02.2016.

5. On 07.07.2016, an order came to be passed in which paragraphs 4 and 5 read as under:-

4. Accordingly, the following additional issue is framed:

'Whether the Defendants prove that the Petition as filed is not maintainable?'

5. I am making it clear that at this stage I am leaving open all rights and contentions of both sides and specifically granting liberty to both the Plaintiffs and the Defendants to file such or further applications as they may think fit.”

In the meanwhile, as the petitioners have already filed affidavit in lieu of Examination-in-chief, the petitioners were granted liberty to file further affidavit in lieu of examination in-chief.

6. Mr. Kurup, counsel for the petitioners, states that since issues have been already framed, this is a matter which has to go through a trial to determine who is entitled to what and therefore, this Notice of Motion should be dismissed.

7. Ms. Khandeparkar, per contra, submits this Court was pleased to frame an additional issue as to whether the defendants prove that the Petition as filed is not maintainable and while framing the additional issue, also specifically granted liberty to file such or further applications as they think