Madras High Court
R.Palanisamy vs Devaki on 20 September, 2024
Tr CMP Nos.465 & 679 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.09.2024
CORAM
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
Tr CMP Nos.465 & 679 of 2024 &
CMP.Nos.9443 & 14666 of 2024
In Tr CMP No.465 of 2024
R.Palanisamy : Petitioner
versus
1.Devaki
2.S.Poongodui
3.P.Ayyappan
4.P.Sankar
5.The Joint-I Sub Registrar,
District Registrar Office, Erode.
6.The Sub Registrar, Sub Registrar Office,
Avalpoonthurai, Perunthurai Taluk,
Erode District.
7.The Sub Registrar, Sub Registrar Office,
Namagiripettai Post, Rasipuram Taluk,
Erode District. : Respondents
Prayer: Petition filed under Section 24 of the Constitution of India to
withdraw the suit in O.S.No.200 of 2021 on the file of the Court of the
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Principal District Judge, Namakkal and transfer the same to the file of the
Court of the District and Sessions Judge, Erode and hear the same along
with the petition in Probate O.P.No.43 of 2021 on the file of the Court of the
District and Sessions Judge, Erode filed by the petitioner.
For Petitioner : Mr.R.Agilesh
For Respondents : Mr.D.Akaash
for Mr.N.Manoharan
In Tr CMP No.679 of 2024
1.Devaki
2.S.Poongodui : Petitioners
versus
1.R.Palanisamy
2.P.Ayyappan
3.P.Sankar : Respondents
Prayer: Petition filed under Section 24 of the Constitution of India to
withdraw the Probate O.P.No.43 of 2021 from the file of the Court of the
Principal District Court, Erode and transfer the same to the Principal
District Court, Namakkal to try along with O.S.No.200 of 2021
For Petitioners : Mr.D.Akaash
for Mr.N.Manoharan
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Tr CMP Nos.465 & 679 of 2024
For Respondents : Mr.R.Agilesh
COMMON ORDER
The first transfer petition viz., Tr CMP No.465 of 2024 seeks for a
transfer of O.S.No.200 of 2021 from the file of the learned Principal District
Judge at Namakkal to the file of the District and Sessions Judge, Erode. The
second transfer petition viz., Tr CMP No.679 of 2024 seeks exactly the
contrary relief.
2. The properties that are involved in the cases belonged to one
Ponnammal. From the wedlock between Ponnammal and S.Palanisamy, two
daughters namely, Devaki and Poongodi and two sons, namely, Ayappan
and Sankar were born. Ponnammal executed a WILL on 18.10.2019
bequeathing her share in favour of her husband, Palanisamy. Ponammal
went to meet her maker on 07.12.2019. In order to get probate of the WILL
executed by Ponnammal in his favour, Palanisamy initiated O.P.No.43 of
2021 on the file of the Principal District and Sessions Judge at Erode.
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Tr CMP Nos.465 & 679 of 2024
3. Out of six items of the properties, five items are situated within
Erode District and one item is situated in Namakkal District. Utilising the
property in Namakkal, the respondent in O.P.No.43 of 2021 have initiated a
suit for partition in O.S.No.200 of 2021 on the file of the Principal District
Judge at Namakkal.
4. Pleading that the transfer petitioner in Tr CMP No.465 of 2024 is a
senior citizen, aged about 72 years and is unable to undertake journey from
Erode to Namakkal, Transfer CMP No.465 of 2024 has been presented. The
daughters, who are the plaintiffs in O.S.No.200 of 2021 have filed Transfer
CMP No.679 of 2024.
5. Notice was ordered in the transfer applications on 25.04.2024 and
19.07.2024. The respondents have been served and they entered appearance
through counsels.
6. I have heard Mr.D.Akaash for Mr.N.Manoharan and Mr.R.Agilesh.
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Tr CMP Nos.465 & 679 of 2024
7. Mr.R.Agilesh, pleading that his client is a senior citizen and
pointing out that apart from Devaki, all other contesting parties are the
residents of Karungalpalayam in Erode, would plead that it will be
convenient to try the proceedings at Erode.
8. Mr.D.Akaash placing reliance upon a judgment of Supreme Court
in State Bank of India v. Ranjan Chemicals Ltd. And Others, (2007) 1
SCC 97, would plead that as the issue of WILL alone is involved in a
probate proceeding, the substantive proceeding being one of partition, the
proceedings would have to be transferred to Namakkal.
9. I have carefully considered the submissions of both sides.
10. A perusal of the address of the parties shows that apart from
Ms.Devaki, all other parties to the proceedings are the residents of
Karungalpalayam Erode. A perusal of the schedule of the properties
involved in the suit would show that out of six items, items 1 to 5 are
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Tr CMP Nos.465 & 679 of 2024
situated in Erode and item 6 alone is situated in Namakkal.
11. Furthermore, if the Probate OP is granted as prayed for, then
Palanisamy, who can claim title over the ½ share, which has been left
behind by Ponnammal would become the full owner. If the probate is
dismissed, the properties are open for partition. Hence, there should not be
conflict of judgments between the Courts at Namakkal and Erode.
12. As pointed in the judgment cited by Mr.D.Akaash, if the relief
claimed in both the proceedings arose out of series of transactions, then it is
desirable that both the proceedings should be tried by one Court by way of
joint trial. As the judgment in the probate proceedings will have
repercussions in the partition suit and since the probate proceeding has
been initiated earlier, in order to avoid of conflict of judgments, I am
inclined to accept the petition filed by Palanisamy.
13. Accordingly, transfer CMP.No.465 of 2024 stands allowed.
O.S.No.200 of 2021 pending before the learned Principal District Judge,
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Tr CMP Nos.465 & 679 of 2024
Namakkal is withdrawn and transferred to the file of the learned District and
Sessions Judge at Erode to be heard and tried along with Probate O.P.No.43
of 2021.
14. On receipt of the records, the learned District and Sessions Judge
at Erode shall take note of the fact that the petitioner in the probate
proceeding is a senior citizen and therefore priority will be given in the said
mater.
15. Since Transfer CMP No.465 of 2024 is allowed, Transfer CMP
No.679 of 2024 is dismissed. No costs. Consequently, the connected
miscellaneous petitions are closed.
20.09.2024
nl
Index : Yes/No
Speaking Order/Non-speaking order
Neutral Citation : Yes/No
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Tr CMP Nos.465 & 679 of 2024
To
1. The Principal District Judge,
Namakkal
2. The District and Sessions Judge,
Erode
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Tr CMP Nos.465 & 679 of 2024
V.LAKSHMINARAYANAN, J.
nl
Tr CMP Nos.465 & 679 of 2024
20.09.2024
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