Madras High Court
Menaka vs Balasubramanian on 11 April, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.04.2022
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
C.R.P.PD.No.2303 of 2017
and
C.M.P.No.10870 of 2017
1. Menaka
2. Sudha
3. Manikandan
4. Andal ... Petitioners
Vs.
1. Balasubramanian
2. Mathiyazhagan @ Narayanasamy
3. Subramanian
4. Murugan
5. Annapoorani
Ramachandran (Died)
6. Valliammal
7. Saroja
8. Kalaiselvi
9. Latha
10. Venkatachalapathi ...Respondents
Prayer:- Civil Revision Petition filed under Article 227 of Constitution
of India, against the Fair and Decreetal orders dated 16.03.2017 made in
I.A.No.157 of 2017 in O.S.No.145 of 2005 on the file of the II
Additional District Munsif, Ulundurpet.
https://www.mhc.tn.gov.in/judis
2
For Petitioners .. Mr.C.Munusamy
For R1, R5 and R10 .. M/s.R.Poornima
ORDER
This Civil Revision Petition has been filed against the Fair and
Decreetal order dated 16.03.2017 made in I.A.No.157 of 2017 in
O.S.No.145 of 2005 on the file of the II Additional District Munsif,
Ulundurpet.
2.The Plaintiffs in O.S.No.145 of 2005 pending on the file of the II
Additional District Munsif, Ulundurpet are the revision petitioners
herein. The said suit in O.S.No.145 of 2005, had been filed by them
seeking partition and separate possession of the suit mentioned properties
and to pass preliminary decree in accordance with such share allotted to
the plaintiffs.
3.A written statement had been filed in the said suit by the
defendants.
https://www.mhc.tn.gov.in/judis
4. Thereafter, an Interlocutory Application in I.A.No.157 of 2017
came to be filed by the revision petitioners/Plaintiffs. They had filed the
said application under Order 16 Rule 1 of CPC, stating that one
Ramachandran who had executed a Will in the year 2004, had taken
treatment at JIPMER Hospital, Puducherry in the year 1999 and in the
Government General Hospital, Chennai, between 2000 and 2001 and had
subsequently taken treatment at Puducherry Mahatma Gandhi Medical
College Hospital in the year 2008 and that thereafter, the said
Ramachandran had unfortunately passed away. An application was filed
seeking to call for records from the Government General Hospital,
Chennai and from Puducherry Mahatma Gandhi Medical College
Hospital and to examine the responsible Officials from both the hospitals
as witnesses and also for further relief to summon as witness, the Sub
Registrar, Ulundurpet, where the Will said to have been written by the
said Ramachandran was registered in the year 2004.
5.A counter had been filed in the said application.
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6.Thereafter, an order was passed on 16.03.2017, wherein the II
Additional District Munsif, Ulundurpet holding Full Additional Charge
at Ulundurpet, had observed that there no bonafide reason had been
advanced as to why the Sub Registrar has to be examined. It was also
stated that as per the discharge summaries which has been already
marked as Exs.B7 to B10, there was no dispute whether the said
Ramachandran had taken treatment in the said hospitals. The said
application was dismissed, necessitating filing of the present Revision
Petition.
7.Heard Mr.C.Munusamy, learned counsel for the revision
petitioners and Ms.R.Poornima, learned counsel for the respondents R1,
R5 and R10
8.The issue can be narrowed down to quite simple facts. There was
a Will which was executed in the year 2004. A suit was filed seeking
partition and separate possession. The executant of the Will had taken
treatment in three separate hospitals in three separate time periods, one in
the year 1999 at JIPMER Hospital, Puducherry, the second in the years
https://www.mhc.tn.gov.in/judis
2000-2001 at Government General Hospital, Chennai and the third in the
year 2008 at Puducherry Mahatma Gandhi Medical College Hospital.
The discharge summaries issued by the three hospitals had been marked
as Exs.B7 to B10.
9.An application had been filed seeking to summon as witnesses
i.e. Chief Medical Officers of the three hospitals. But, the records speak
for themselves. Even if the Chief Medical Officers are present, they
would only confirm the discharge summaries, which have already been
filed. Moreover, it is seen that the Will was executed in the year 2004.
The treatment periods at JIPMER and Government General Hospital
Chennai, were in the years 1999 to 2001 and therefore would not have
any direct bearing on the executant when the Will executed in the year
2004. The third treatment at Puducherry Mahatma Gandhi Medical
College Hospital was in the year 2008, which again cannot speak about
the physical or mental condition of the said Ramachandran in the year
2004. Therefore, issuing summons to the said officials would not
advance the cause to the Plaintiffs. It would be advisable if the plaintiffs
grazes the witness box and establish their right to seek partition and
examine of the other independent witnesses.
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10. So far as the application seeking to summon the Sub Registrar,
Ulundurpet, a reasonable presumption can be drawn under Section 114 of
the Evidence Act, that an Official act done during the course of discharge
of Official duty would have been done appropriately and in proper
manner. There is no issue raised with respect to the registration of the
Will. Therefore, I would not permit examination that particular witness
also.
11.The order under revision dated 16.03.2017 dismissed in
I.A.No.157 of 2017 is upheld and the Civil Revision Petition stands
dismissed. No order as to costs. Consequently, connected Civil
Miscellaneous Petition is closed.
12.I am informed that O.S.No.145 of 2005 is now posted for
advancing arguments before the II Additional District Munsif,
Ulundurpet. A direction is given that immediately after arguments are
advanced, before the end of June 2022, the judgment must be
pronounced and the suit must be disposed. If evidence had already been
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recorded with respect to the validity of the Will, then such evidence may
be analyzed during the pronouncement of the judgment.
11.04.2022
Internet:Yes/No
Index:Yes/No
mn/smv
To,
The II Additional District Munsif Court, Ulundurpet.
https://www.mhc.tn.gov.in/judis
C.V.KARTHIKEYAN,J.
mn/smv
C.R.P.PD.No.2303 of 2017
and
C.M.P.No.10870 of 2017
11.04.2022
https://www.mhc.tn.gov.in/judis
