Madras High Court
K.Subramaniam vs R.Thangaraj on 23 March, 2022
C.R.P(PD)No.3507 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
C.R.P(PD).Nos.3507 of 2017
and
CMP.No.16273 of 2017
K.Subramaniam ..Petitioner
Vs.
1.R.Thangaraj
2.N.Jayalakshmi
3.A.Amaravathi
4.K.Thangavel
5.R.Selvaraj
6.Muthayee
7.K.Sakunthala
8.S.Chellammal ..Respondents
Prayer: Civil Revision Petition filed under Article 227 of the Constitution of
India, against the fair and decreetal order dated 08.08.2017 made in
I.A.No.397 of 2017 in O.S.No.575 of 2012 on the file of the Principal
District Munsif Court, Erode.
For Petitioner : Mr.C.Munusamy
For Respondents : No Appearance
1/8
https://www.mhc.tn.gov.in/judis
C.R.P(PD)No.3507 of 2017
ORDER
Let me not keep this revision petition any further on the file of
this Court. This Civil Revision Petition arises from an order passed in
I.A.No.397 of 2017 in O.S.No.575 of 2012. The said suit is now pending
for 10 years and if, orders are held over in this revision petition, it will
continue to be pending for another 10 years.
2.The suit in O.S.No.575 of 2012 had been filed by one
K.Thangavel against eight defendants. The 6th defendant / K.Subramaniam
is the revision petitioner herein. The suit had been filed with respect to a
property of Kasianna Gounder, who died on 01.04.1984. The geneology
table had been given in the plaint and the plaintiff and the revision
petitioner herein / 6th defendant, are the sons of Kasianna Gounder. They
also have other brothers and sisters. The further defendants are the sons and
daughters of one of their sisters, who died prior to institution of the suit.
3.It is claimed that the suit property is a self-acquired property of
Kasianna Gounder and therefore, all those, who can probably claim a share
https://www.mhc.tn.gov.in/judis
C.R.P(PD)No.3507 of 2017
in the said property in view of the death of Kasianna Gounder, have been
impleaded in the suit and the plaint had been laid for partition and separate
possession of the particular suit property.
4.The present revision petitioner / 6th defendant alone is
contesting that particular version to seek partition primarily because he
relies on a particular Will and claims that by the said Will, Kasianna
Gounder had bequeathed the property to the revision petitioner / 6th
defendant in the suit.
5.The trial had commenced and evidence of the plaintiff had been
adduced. Thereafter, the revision petitioner / 6th defendant had also been
examined as D.W.1. He also produced the Will and it had also been marked
as a document. He then, filed an application seeking to issue process to the
attestors of the Will to examine them. That application had also been
allowed. At that particular stage, the 1st, 2nd and 3rd defendants in the suit
had filed I.A.No.397 of 2017 calling upon the Court to forward the Will to
determine the genuinity of the thumb impression of Kasianna Gounder.
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C.R.P(PD)No.3507 of 2017
Filing of the said Interlocutory Application had effectively put spokes on the
further progress in the trial of the suit. Filing of the present revision petition
has further strengthened such spokes and there has been absolutely no
progress in the suit.
6.The proper approach which should have been taken by the Trial
Court would have been to examine the attestors, analyse the evidence to
find out whether the Will had been proved in manner known to law and if,
still, the Court entertains doubt regarding the genenuity of the thumb
impression then, the process of forwarding the Will for examination by a
forensic expert with respect to the thumb impression could have been
undertaken by the Court. However, the attestors, to examine whom
permission had already been granted, should adduce evidence. I hold that
the order of the Principal District Munsif in I.A.No.397 of 2017, directing
that the Will should be forwarded for examining the thumb impression by a
forensic expert, has to be kept in abeyance.
7.Let the trial proceed. Let the attestors to the Will also be
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C.R.P(PD)No.3507 of 2017
examined. Let the learned District Munsif examine whether the Will had
been proved in manner known to law. The Will can be forwarded for
forensic examination only if there are sufficient pleadings for the same and
that has to be as last resort.
8.In the order impugned, no specific observation has been given
as to whether any one of the parties have doubted the execution of the Will
by Kasianna Gounder. It had however, been observed that the revision
petitioner had produced the Will in the begining itself. Therefore, it is the
duty of the Court to first give a finding on whether the Will had been proved
in manner known to law.
9.I would therefore, set aside the order in I.A.No.397 of 2017.
10. Let the suit proceed further by examining further witnesses on
behalf of the defendants. If on analysis of the evidence, the Court still has
any doubt then, at that particular stage, after recording the evidence,
exercising power vested, the Court can take a decision to forward the Will
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C.R.P(PD)No.3507 of 2017
for forensic examination. If the Court does not entertain any doubt about
the execution of the Will, the Court can proceed to pass judgment in the
main suit itself.
11.In such observations, this Civil Revision Petition stands
disposed of with a direction to the Principal District Munsif Court, Erode to
proceed further with the trial in O.S.No.575 of 2012 and come to logical
conclusion on the issues on or before 31.07.2022. No costs. Consequently,
connected miscellaneous petition is closed.
23.03.2022
kkn
Index:Yes/No
Internet:Yes/No
Speaking/Non-speaking order
https://www.mhc.tn.gov.in/judis
C.R.P(PD)No.3507 of 2017
To:-
The Principal District Munsif Court,
Erode.
https://www.mhc.tn.gov.in/judis
C.R.P(PD)No.3507 of 2017
C.V.KARTHIKEYAN, J.
KKN
C.R.P(PD).Nos.3507 of 2017
and
CMP.No.16273 of 2017
23.03.2022
https://www.mhc.tn.gov.in/judis
