Madras High Court
Nancy Swarnaladha vs Kamala Mary on 13 September, 2022
C.R.P.No.4186 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.09.2022
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
C.R.P.No.4186 of 2017
and
C.M.P.No. 19604 of 2017
1. Nancy Swarnaladha,
D/o. J.G.Jesudhasan
2. Mallika,
W/o. Late Antony Nallaiah Charles
3. Christober Premkumar,
S/o. Late Antony Nallaiah Charles
4. Nisha Selva Malar,
D/o. Late Antony Nallaiah Charles ... Petitioners
Vs.
Kamala Mary ... Respondent
PRAYER: Civil Revision Petition filed under Art. 227 of Constitution of
India, praying to set aside the fair and decreetal order dated 27.04.2017
made in I.A.No.88 of 2017 in O.S.No.1204 of 2007 on the file of III
Addl. District Munsif Court at Coimbatore.
1/5
https://www.mhc.tn.gov.in/judis
C.R.P.No.4186 of 2017
For Petitioners : Mr.P.Mathivanan
For Respondent : Mr.S.Ramesh Kumar
ORDER
The revision petitioners herein are the petitioners in I.A.No.88 of
2017 and the plaintiffs in the suit in O.S.No.1204 of 2007 on the file of
District Munsif, Coimbatore, filed for the relief of declaration and other
consequential relief in respect of the suit property. The plaintiffs claimed
right over the property based upon a Will dated 22.03.1961.
2. The defendant disputed the Will, issues were framed and on the
side of plaintiffs, P.W.1 to 3 were examined and the Will also marked as
Ex.A2. At the time of argument stage, the petitioners filed the application
in I.A.No. 88 of 2017 under Sec.151 of C.P.C. seeking to reopen the case
in order to examine the Registrar of Will, where it was registered. Only in
order to prove the genuineness of the Will, the said application was filed.
It was objected by the defendant stating that after completion of
evidence, in order to fill up the lacuna, the plaintiffs have filed the
application, which is highly belated one. Considering the submissions of
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C.R.P.No.4186 of 2017
both sides, the trial court dismissed the application stating that the
reasons assigned by the petitioners are not sufficient.
3. Challenging the said findings, the plaintiffs preferred this Civil
Revision Petition stating that the court below failed to appreciate the fact
that only to prove the genuineness of Will, they want to examine Joint
Sub-Registrar by issuing summons for the production of records relating
to the Will. But, without considering the same, the trial court dismissed
the application.
4. The learned counsel for respondent would submit that having
failed to utilise all reasonable opportunities and when the case is posted
for judgment, only to drag on the proceedings, without any reasons, they
have filed the said application.
5. On seeing the facts, considering the submissions of both sides,
the Revision Petitioners have filed the application to reopen the case to
examine the Registrar, where the Will was registered and to prove the
genuineness of will, the Registrar is also one of the witness. Furthermore,
the attestor of the alleged Will is also not available. Hence, the Revision
Petitioners are entitled to examine the persons, who are concerned with
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C.R.P.No.4186 of 2017
the registration of the Will. Hence, the findings given by the trial court in
I.A.No. 88 of 2017 is set aside and the petitioners are entitled to issue
summons to the witnesses in order to prove the genuineness of the Will
as stated in the petition. The respondent is also entitled to defend the
witness. Accordingly, this Civil Revision Petition is allowed and the trial
court is directed to dispose the case within a period of three months from
the date of receipt of copy of this order. No costs. Consequently,
connected Civil Miscellaneous Petition is closed.
13.09.2022
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
rpp
To
III Addl. District Judge,
Coimbatore.
https://www.mhc.tn.gov.in/judis
C.R.P.No.4186 of 2017
T.V.THAMILSELVI, J.
rpp
C.R.P.No.4186 of 2017
13.09.2022
https://www.mhc.tn.gov.in/judis
