C.R.P.(MD)No.455 of 2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 02.06.2023

CORAM

THE HONOURABLE MR.JUSTICE C.SARAVANAN

C.R.P.(MD)No.455 of 2023

and

C.M.P.(MD)No.2172 of 2023

R.Venkateswaran

.. Petitioner

Versus

T.L.Harikrishnan

.. Respondent

Prayer :- Petition filed under Article 227 Constitution of India, against the fair and

decreetal order dated 04.01.2023, passed in I.A.No.5 of 2022 in Probate O.P.No.160

of 2022, on the file of the II Additional District Court, Tiruchirappalli.

For Petitioner

:

Mr.M.Vallinayagam

Senior Counsel

for Mr.S.Balasubramanian

For Respondent

:

Ms.Sudharshana Sundar

for Mr.B.Ravi Raja

ORDER

This Civil Revision Petition has been filed against the fair and decreetal order

dated 04.01.2023, passed in I.A.No.5 of 2022 in Probate O.P.No.160 of 2022, on the

file of the II Additional District Court, Tiruchirappalli.

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C.R.P.(MD)No.455 of 2023

2.Heard the learned Senior Counsel for the petitioner and the learned counsel

for the respondent, the Executor of the Will dated 27.09.2019 allegedly executed by

the Testator Late.K.K.S.R.Rajagopalan on 27.09.2019.

3.As per the above said Will, the Testator Late.K.K.S.R.Rajagopalan had

bequeathed the rights in favour of his daughter Jeevarathinam for life and thereafter,

in favour of his granddaughter i.e., the daughter of Jeevarathinam and the respondent

herein.

4.The learned Senior Counsel for the petitioner submits that in Probate

O.P.No.160 of 2022, the respondent herein/the Executor of the Will dated

27.09.2019, had given two addresses and that summons in the said O.P. was not

served on the petitioner.

5.It is the further case of the petitioner that even if the petitioner had remained

ex parte in Probate O.P.No.160 of 2022, in the petition filed for appointment of a

Curator under Section 192 read with Section 269 of the Indian Succession Act, 1925,

he was entitled to a notice, which was not served on him.

6.It is submitted by the learned Senior Counsel appearing for the petitioner

that the preamble to the impugned order itself is unusual inasmuch as it states that

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C.R.P.(MD)No.455 of 2023

the petitioner had been set ex parte in the main petition and that no notice was

required to be served on him.

7.It is submitted that a notice ought to have been served on the petitioner in

the petition filed for appointment of a Curator under Section 192 read with Section

269 of the Indian Succession Act, 1925. That apart, it is submitted that an application

for appointing a Curator has to be filed within six months from the date of death of

the Testator in terms of Section 205 of the Indian Succession Act, 1925. It is

submitted that the Testator Late.K.K.S.R.Rajagopalan died on 06.02.2022.

Therefore, I.A.No.5 of 2022 was filed on 19.10.2022 for appointing a Curator.

8.That apart, it is submitted that Section 269(2) of the Indian Successions Act,

1925 does not apply when the deceased is a Hindu, Muhammadan, Buddhist, Sikh or

Jaina or an exempted person, nor shall it apply to any part of the property of an

Indian Christian who has died intestate.

9.The learned Senior Counsel for the petitioner further submitted that there is

exclusion in Section 269(2) of the Indian Succession Act, 1925, as each of the

religions have different personal law of succession. That apart, the learned Senior

Counsel for the petitioner further submitted that in the case of petition under Part-VII

of the Indian Succession Act, 1925, the District Judge has to follow the procedure as

contemplated in Section 194 of the Indian Succession Act, 1925.

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C.R.P.(MD)No.455 of 2023

10.It is submitted that under Section 193 of the Indian Succession Act, 1925,

the District Court in the first place has to examine the applicant on oath, and may

make such further inquiry, if any, whether there are sufficient grounds