Madras High Court
C.Vasudevan vs Deepak Jesudass on 10 September, 2024
Author: S.S.Sundar
Bench: S.S.Sundar
O.S.A.No.226 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.09.2024
CORAM
THE HON'BLE Mr. JUSTICE S.S.SUNDAR
AND
THE HON'BLE Mr. JUSTICE K.RAJASEKAR
O.S.A.No.226 of 2022
AND
C.M.P.No.9091 of 2024
C.Vasudevan .. Appellant
Vs.
Deepak Jesudass .. Respondent
(Impleaded vide order dt.8.2.2024
passed in C.M.P.No.18955 of 2022)
Original Side Appeal filed under Order XXXVI Rule 1 of Original Side
Rules, read with Clause 15 of the Letters Patent, against the order dated
10.06.2022 passed in O.P.No.762 of 2021.
For Appellant : Mr.B.Gandhi
For Respondent : Mr.Sharath Chandran
for Mr.R.Krishna Kumar
JUDGMENT
(Delivered by S.S.SUNDAR, J.)
This appeal is directed against the order dated 10.06.2022 passed by the
learned Single Judge in O.P.No.762 of 2021, refusing to probate the will stated
to have been executed by one Iyyamperumal on 23.05.2005.
2. The brief facts of the case are as follows :
https://www.mhc.tn.gov.in/judis
2.1. The appellant is the petitioner in the said Original Petition, which
was filed for grant of probate, in respect of the will executed by one
Iyyamperumal on 23.05.2005, appointing the appellant as the Executor. The
said Iyyamperumal died on 13.02.2006.
2.2. It is to be noted that the Original Petition itself was filed only in the
year 2021. The explanation of the appellant for the delay in filing the original
petition is that the original will was under the custody of one Thanga Lakshmi,
wife of the Testator, viz., Iyyamperumal, in the trunk box and during her
lifetime, the trunk box was not opened and after her death on 19.11.2018, when
he opened the trunk box, he found the original will.
2.3. Admittedly, the two attestors to the will were K. Raman and
K. Suresh. Before the learned Master, the appellant examined himself as P.W.1
and one R.Suresh, who is the son of K.Raman as P.W.2. Though the appellant
examined himself as P.W.1 and marked six documents, he has not disclosed
whether the attestor K.Raman is alive or dead. In other words, it is not known as
to why instead of K. Raman, his son R. Suresh was examined by the appellant
as P.W.2.
2.4. The learned Single Judge, after taking note of the fact that the will
https://www.mhc.tn.gov.in/judis
itself has been produced after a long time and other attending circumstances,
came to a conclusion that the appellant failed to prove the will in the manner
known to law.
2.5. Aggrieved by this finding of the learned Single Judge, the appellant
has preferred this appeal.
3. This Court heard the submissions of the learned counsel on either side
and perused the materials available on record.
4. It is to be noted that R. Suresh (P.W.2), who is the son of K. Raman,
one of the attestors to the will, has not spoken as to whether his father is alive or
not and if alive, why he could not depose about the attestation. P.W.2 has also
deposed that he accompanied his father to the residence of the Testator, where
he had also seen the Testator affixing his signature in the will in his presence
and in the presence of his father.
5. From the way in which P.W.2 has deposed, this Court has reasons to
believe that the said P.W.2 is not a witness who can be believed. The appellant
has not pleaded that both the attesting witnesses, viz., K. Raman and K. Suresh,
https://www.mhc.tn.gov.in/judis
could not be produced. There is no positive evidence to show that the attesting
witnesses are either dead or not traceable. The appellant has not satisfied the
statutory requirement to examine P.W.2 in the place of his father K. Raman,
who was one of the attestors to the will. Even though it is stated that the other
attestor, viz., K. Suresh, is alive, the appellant has not let in evidence to prove
that his whereabouts are not known to the appellant. In view of the valid
reasons assigned by the learned Single Judge, this Court finds no reason to
interfere with the order impugned.
6. The learned counsel appearing for the appellant submitted that an
opportunity may be given to the appellant to prove the death of K.Raman by
examining R. Suresh (P.W.2). He also brought to the notice of this Court that
C.M.P.No.9091 of 2024 has been filed seeking permission to examine
K.Suresh, 2nd attestor of the will. Further, from a perusal of the death certificate
of K. Raman found at page No.28 of the typed set of papers filed along with the
appeal, it is seen that K.Raman had expired way back in 2008. If that is the
factual position, this Court is unable to comprehend as to why this factum of
death of K. Raman was not brought to light, either by the appellant (P.W.1) or
by P.W.2 at the time of their examination before the learned Master and also
before the learned Single Judge and why it is sought to be brought to light only
https://www.mhc.tn.gov.in/judis
now at the appellate stage, that too, after three years from the date of filing of
O.P. before the learned Single Judge.
7. The Hon'ble Supreme Court and this Court, time and again, have
explained the circumstances under which Order XLI Rule 27 of CPC can be
invoked to let in additional evidence. This Court finds no convincing reason to
permit the appellant to let in evidence, as sought by him, at this stage without
necessary pleading. A Division Bench of this Court, in the case of Mr.
Rathinavel and others v. Rajamanickam and others (A.S. No.348 of 2014
decided on 22.12.2022), considered similar request for remitting the matter to
give an opportunity to examine further witnesses to prove attestation. Giving
valid reasons, the request was rejected taking note of the time gap and similar
circumstances. We are inclined to follow the same reasons to reject the request.
https://www.mhc.tn.gov.in/judis
S.S.SUNDAR, J.
AND
K.RAJASEKAR, J.
gya
8. In view of the conclusions reached above, this Court finds no reason to
entertain this appeal and the same is accordingly, dismissed. No costs.
Connected C.M.P. is closed.
[S.S.S.R.,J.] [K.R.S., J.]
10.09.2024
gya
Internet : Yes
Neutral Citation : Yes/No
https://www.mhc.tn.gov.in/judis
