IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10..09..2024 Coram THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN Civil Revision Petition No.3673 of 2024 and C.M.P.No.19963 of 2024 Masayathal ..... Petitioner -Versus-

Mylsamy Gounder (Died)

1.M.Mahesh Ram

2.M.Saravanan

3.M.Harshavarthini

4.S.Kalyanisami

5.M.Poongodi

6.S.Subramanian

7.N.Anguraj

8.N.Selvakumar 9.C.Vijayakumar

10.M.Santhi

11.Vrindha Iyer 12.M.Srinivasan

13.R.Muralikrishnan

14.K.Mylsami

15.V.Venkateshwari

16.Saroja

17.Devipriya ..... Respondents Petition filed under Article 227 of the Constitution of India, praying to set aside the order dated 23.07.2024 made in I.A.No.08 of 2024 in O.S.No.155 of 2009 on the file of the Subordinate Judge, Pollachi, by allowing this civil revision petition.

For Petitioner : Mr.J.Aravind

ORDER

This civil revision petition arises against an order of the learned Subordinate Judge, Pollachi, dated 23.07.2024 in I.A.No.8 of 2024 in O.S.No.155 of 2009.

2. The suit in O.S. No. 155 of 2009 is the suit for partition and separate possession filed at the instance of the civil revision petitioner.

3. It is the case of the defendants that their grandfather, one Arumugha Gounder, executed a “WILL” in their favour on 09.02.1968. They would allege th that the original of the “WILL” is with the 17 defendant. They would plead that there were three attesting witnesses to the “WILL” and in order to prove the “WILL” they had taken witness summons to the attesting witnesses. All three summonses were returned unserved. Therefore, they filed an application in I.A.No.8 of 2024 seeking for recalling the evidence of D.W.1 to mark the unserved summons as exhibits in the court.

4. The learned trial Judge issued notice in the application and received counter from the plaintiff.

5. The plaintiff would allege that in terms of Section 68 of the Indian Evidence Act, one or two of the attesting witnesses have to be examined. If the attesting witnesses are not examined, the “WILL” has to be proved by examining the legal heirs of the said attesting witnesses, and therefore, the marking of summons is unnecessary.

6. The learned trial Judge taking into consideration the petition, affidavit, counter, and the arguments placed on either side, allowed the application.

Hence, this revision is at the instance of the plaintiff.

7. Heard Mr.J.Aravind for the civil revision petitioner.

8. Mr.J.Aravind would submit that summons are court exhibits and therefore, no necessity to recall D.W.1 for the purpose of marking the documents. He would state that the appropriate procedure for proving the “WILL” is by examining one or two of the attesting witnesses, and if they are not able to do so, the marking of summons would not help the case of the defendants.

9. I have carefully considered the submissions of Mr.J.Aravind.

10. The manner of proof of “WILL” is set out under Section 68 of the Indian Evidence Act. Under Section 68 of the Indian Evidence Act, a propounder of the “WILL”, will have to examine one or two of the attesting witnesses. In case, the attesting witnesses are not available, then the remaining procedures under Sections 69 to 71 of the Indian Evidence Act can be followed. In order to invoke Section 69 of the Indian Evidence Act, it is the duty of the propounder to show that the attesting witnesses cannot be found. Only if this basis is laid, then they can proceed under Section 69 of the Indian Evidence Act.

11. It is not in dispute that summons were taken to the attesting witnesses and they were returned as unserved. These returned summons do not automatically become court exhibits. They are court records. They have to be exhibited like any other doucment. The defendants want to mark the unserved witness summons in order to substantiate the fact that the attesting witnesses are not available. This is only laying the foundation, as stated above, to proceed further in accordance with Sections 69 to 71 of the Indian Evidence Act.

12. In the light of the above, I do not find any reason to interfere with t