Lindsay Woolridge vs Eunice Woolridge (Died)
2023 Latest Caselaw 12409 Mad

                                                                            C.R.P.(MD)No.748 of 2019

                            BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                    DATED : 13.09.2023

                                                         CORAM:

                                  THE HONOURABLE MR.JUSTICE C.KUMARAPPAN

                                              C.R.P.(MD)No.748 of 2019
                                                        and
                                              C.R.P.(MD)No.4472 of 2019

                       Lindsay Woolridge                 ... Petitioner / Petitioner/Plaintiff
                                                         Vs.
                       Eunice Woolridge (died)
                       Trevelyn Woolridge             ... Respondents / Respondents/Defendants

                       Prayer: This Civil Revision Petition is filed under Article 227 of the

                       Constitution of India, against the fair and decretal order, dated

                       11.03.2019, in I.A.No.532 of 2016, in O.S.No.68 of 2014, on the file of

                       the VI Additional District Judge, Madurai.

                                   For Petitioner      : Mr.K.Sekar

                                   For Respondent      : Mr.V.Meenakshi Sundaram

                                                         ORDER

The instant Civil Revision Petition has been filed against the

order, dated 11.03.2019, in I.A.No.532 of 2016, in O.S.No.68 of 2014,

on the file of the VI Additional District Judge, Madurai.

https://www.mhc.tn.gov.in/judis C.R.P.(MD)No.748 of 2019

2.The revision petitioners herein is the petitioner /plaintiff

and the respondents herein are the respondents /defendants before the

Court below.

3. For the sake of convenience, the parties are referred to

according to their litigative status before the Court below.

4. It appears that originally the plaintiff filed a suit for

partition, seeking division of property and for allotment of 1/3rd share

to the plaintiff. In the suit, the plaintiff added his mother as well as his

brother as defendants.

5. It appears that a preliminary decree was passed on

20.01.2015 and after passing of preliminary decree the mother of the

plaintiff, who was the first defendant, died. Hence, in the preliminary

decree application, the plaintiff has altered the ratio of share and prayed

for ½ share in the suit property.

https://www.mhc.tn.gov.in/judis C.R.P.(MD)No.748 of 2019

6. However, the contention of the plaintiff was objected by his

brother, who was the second defendant in the suit and pleaded

testamentary succession in respect of their mother's property, viz.,

undivided 1/3 share in the suit property. According to the defendants,

his mother executed a registered Will, dated 02.02.2015 under

Document No.18/2015, therefore, his mother's 1/3 share would devolve

only upon the defendant, therefore, contended that the alternation of

share is without any basis.

7. However, the Court below has believed the statement of the

second defendant and granted the final decree, only in respect of 1/3

share to the plaintiff.

8. Aggrieved with the said order, the plaintiff has approached

this Court by way of this Civil Revision Petition.

9. The learned counsel for the plaintiff would submit that the

Court below has not taken into consideration of various suspicious

circumstances and that he would submit that the very Will is the

fabricated one.

https://www.mhc.tn.gov.in/judis C.R.P.(MD)No.748 of 2019

10. Before this Court embark into the submissions made by

the learned counsel for the plaintiff, it has to be decided whether the

Civil Revision Petition is maintainable against the final decree

application. It is well settled principles of law that against the final

decree proceedings appeal remedy is provided under Order 41 of C.P.C.

It is pertinent to mention here that when an appeal remedy is provided,

the Civil Revision is not maintainable.

11. In a Similar Circumstances, the learned Single Judge of

this Court has held that against the final decree proceedings, appeal

alone would maintainable, in the judgment reported in 2016-SCC-

Online Mad-15782 (Prema V. Dr.Subramaniam). Even in an

unreported judgment of this Court in C.R.P.(MD)No.1427 of 2022

(K.Arunagirinathan V. R.Dakshinamurthi), dated 29.04.2022, the

learned Single Judge has taken a similar view.

https://www.mhc.tn.gov.in/judis C.R.P.(MD)No.748 of 2019

12. Therefore, this Court is of the firm view that the very

Revision is not maintainable. Hence, the instant Civil Revision Petition

stands dismissed. There shall be no order as to cost.

13. However, the plaintiff / revision petitioner is given liberty

to move an appeal before the appropriate Court within a period of four

weeks from the date of receipt of copy of this order. In that event, the

First Appellate Court, while calculating the period of limitation for

filing Appeal, the period during which the Civil Revision Petition is

pending may be excluded as per Section 14 of the Limitation Act.

Consequently, connected Miscellaneous Petition is closed.

                                                                                 13.09.2023

                       NCC        : Yes/No
                       Index      :Yes/No
                       Ls

Note: The Office is required to return the original decree in challenge in this proceedings to the petitioner.

https://www.mhc.tn.gov.in/judis C.R.P.(MD)No.748 of 2019

C.KUMARAPPAN.,J.

Ls

To

1.The VI Additional District Judge, Madurai.

2.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

Order made in C.R.P(MD)No.748 of 2019

13.09.2023

https://www.mhc.tn.gov.in/judis