An Unprobated 'Will' can be admitted in evidence for collateral purposes, and the plaintiff can challenge a Settlement Deed as a Class I legal heir of the deceased, even without relying on the 'Will' for claiming right or title.

ORDER :

[Prayer: Petition filed under Article 227 of the Constitution of India praying to set aside the Judgment and Decree dated 23.03.2021 passed in the I.A.No.1 of 2019 in O.S.No.4120 of 2014 pending on the file of VIII Assistant Judge (FAC) I Assistant Court at Chennai.]

[Prayer: Petition filed under Article 227 of the Constitution of India praying to set aside the fair order and decretal order dated 26.10.2021 passed by the 1st Asst. Judge City Civil Court, Chennai, in I.A.No.2 of 2021 in O.S.No.4120 of 2014, pending on the file of the 1st Asst. City Civil Court, Chennai.]

1. The Civil Revision Petition in C.R.P.No.2225 of 2021 is filed, challenging the fair and decretal order dated 23.03.2021 passed in I.A.No.01 of 2019 in O.S.No.4120 of 2014.

1.1. The Civil Revision Petition in C.R.P.No.464 of 2022 is filed to set aside the fair and decretal order dated 26.10.2021 passed by the I Asst. Judge, City Civil Court, Chennai, in I.A.No.2 of 2021 in O.S.No.4120 of 2014, pending on the file of the I Assistant City Civil Court, Chennai.

2. The parties are referred as per the ranking in the Trial Court.

Facts of the case:

3. The revision petitioners in C.R.P.No.2225 of 2021 are the mother and three sisters of the revision petitioner in C.R.P.No.464 of 2022. The Suit was instituted to declare the Settlement Deed registered as document No.17 of 2008 dated 10.01.2008 as null and void and for permanent injunction. The Suit was instituted by the revision petitioner in C.R.P.No.464 of 2022, Smt.Agila Vijayakumar.

4. The defendants in the Suit filed I.A.No.01 of 2019 for rejection of plaint under Order VII Rule 11 of Code of Civil Procedure, 1908. The rejection of plaint was filed mainly on the ground that there is a bar created by Statute against the institution of Suit, premature presentation of Suit renders in presentation itself is blatantly void and Suit does not disclose any cause of action or lack of cause of action and thus, the plaint is to be rejected.

5. Another Interlocutory Application in I.A.No.02 of 2021 was filed by the defendants under Section 151 of Code of Civil Procedure, not to permit the plaintiff to mark the document of Unprobated ‘Will’ as evidence in the present Suit. The Trial Court considered the claim of the defendants and allowed the Interlocutory Application filed by the defendants in I.A.No.02 of 2021. Thus, the plaintiff filed C.R.P.No.464 of 2022 and the defendants filed C.R.P.No.2225 of 2021.

6. The Suit schedule property is situated within Chennai City and the ‘Will’ relied upon by the plaintiff is not entertainable, since it was not probated. An Unregistered and Unprobated ‘Will’ is the basis for presentation of the Suit without any cause of action and thus, the plaint is to be rejected. That apart, the Suit is barred by limitation since the alleged ‘Will’ was executed on 27.11.2007, which is Unregistered and Unprobated. The ‘Will’ ought to have been probated prior to the institution of the Suit.

7. The plaintiff filed a counter affidavit in the Interlocutory Application, objecting that the plaintiff is not claiming any title based on the ‘Will’ dated 27.11.2007. Marking of the ‘Will’ cannot be prevented, since it is marked for collateral purposes and the plaintiff is not claiming as a legatee. The plaintiff filed O.P.No.882 of 2017 for probate of the ‘Will’ before the High Court of Judicature at Madras and the said O.P was converted into T.O.S.No.01 of 2018 and it is pending. The plaintiff is the absolute owner in possession and enjoyment of the Suit Schedule Property. Her father executed the ‘Will’ dated 27.11.2007, while in sound disposing state of mind and that is the last ‘Will’ and testament of her father, which was disinherited all other heirs of her father and she had taken over the physical possession of the Suit Scheduled Property uninterruptedly after the death of her father. As per the ‘Will’ dated 27.11.2007, after demise of her father on 23.02.2014, the plaintiff was entitled to the Suit Schedule