O R D E R

Aggrieved against the order dated 23.09.2014 passed in I.A.No.6873 of

2014 in O.S.No.4063 of 2002 on the file of the III Assistant City Civil Court, Chennai, the petitioners have preferred the present Civil Revision Petition.

2.The brief facts, that are necessary for the disposal of the present civil revision petition are as follows:-

2.1. The first respondent herein is the plaintiff in O.S.No.4063 of 2002.

The suit was filed for partition of the plaintiff's 1/12th share in the suit property and the suit was decreed ex-parte. Thereafter, with huge delay, the defendants filed a petition to set aside the ex-parte decree which was allowed by the Appellate Court. Meanwhile, the plaintiff/first respondent herein, had filed an interlocutory application in I.A.No.6873 of 2014 under Section 151 of the Civil Procedure Code read with Section 213 of the Indian Succession Act, to unmark the alleged Will marked as Exhibit B1. The learned Judge, has allowed the application filed by the plaintiff and thereby unmarked Exhibit B1. Aggrieved against the same, the respondents/defendants have filed the present revision petition.

3. According to the learned counsel for the petitioners/defendants, the suit property is a self-acquired property of one Mrs.Chellammal, who is the paternal grand mother of the revision petitioners. She had three children viz. Papaiammal, Govindaraj and Ramadass. During her life time, the said Chellammal had executed the registered Will dated 14.08.1979 in document No.37/1979 and the same is marked as Exhibit B1. Through the said Will, Chellammal bequeathed half share of the suit property in favour of her son Govindaraj and the remaining half share in favour of her 2nd son Ramadass. The learned counsel for the petitioners also submitted that her daughter Papaiammal and son Govindaraj pre-deceased their mother on 14.09.1980 and 14.12.1989. and the said Chellammal also died on 10.09.1993. Ramadass, who is the plaintiff's father died on 07.11.2000. Thereafter, the legal heirs of Ramadass and Govindaraj entered into a Partition Deed/Ex.B.2 document, as their fathers acquired half share each, as per Exhibit Ex.B.1/ Will.

3.1. According to the learned counsel for the petitioners/defendants, the plaintiff traces her right to the suit property only through her grand mother and has not challenged the Will nor the partition Deed. He further relied on the judgment made in Guruswamy and others vs Santhanam reported in 2005 (5) CTC 102 wherein it has been held that merely because document is marked as Exhibit, it will not take away right of the other party to object to its admissibility. He also relied on the judgment made in Commissioner Jalanthar Division and others vs Mohan Krishnan Abrol reported in 2004 (4) CTC 35 wherein it has been held that the property vests in executor on death of testator by virtue of Will and not by virtue of probate, but the testator is not the beneficiary of Will and hence, prayed for allowing the present revision.

4. Per contra, the learned counsel appearing on behalf of the first respondent would submit that the exhibit Ex.B.2, which is the partition deed is entered between the legal heirs of the beneficiary of the unprobated Will/ Ex.B.1. Only through Ex.B1, which is an unprobated Will, the petitioners are tracing their title. As per Section 213 of the Indian Succession Act, it is particularly stated that only on probating a Will, the benficiary could derive title. To strengthen his submission, the learned counsel relied on the judgment made in C.G.Rajendran vs. M.Senthil Kumar reported in 2002 (3) CTC page 338 wherein, it has been held that an unprobated Will cannot be used by the beneficiary to establish his right under the Will. He further drew the attention of this Court to the judgment made in Sridharlal vs. Nirdosh reported in 2009 (2) CTC 157 wherein it has been held that the unprobated Will for the property situated in Chennai City, reliance cannot be placed on such Will, which cannot be m