IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.11.2023 CORAM :

THE HONOURABLE MR. JUSTICE R. MAHADEVAN and THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ Original Side Appeal Nos. 34 & 177 of 2022 and CMP.Nos.2750 & 11107 of 2022

1. Mrs. Muthulakshmi

2. M.Malliga 3. S.Punitha

4. S.Arasu Prakash .. Appellants in both OSAs Versus

1. K.Rani

2. K.Abhinaya (Minor) Rep.by her mother and Natural Guardian Mrs.K.Rani .. Respondents in both OSAs Prayer in OSA.No.34 of 2022: This Original Side Appeal filed under Order 36 Rule 1 of the Original Side Rules read with clause 15 of the Letters Patent to set aside the order dated 10.03.2020 in A.No.5657 of 2019 in O.P.No.18 of 2018.

Prayer in OSA.No.177 of 2022: This Original Side Appeal filed under Order 36 Rule 1 of the Original Side Rules read with clause 15 of the Letters Patent to set aside the order dated 29.04.202 in A.No.4950 of 2021 in T.O.S.No.34 of 2019 which was modified on 16.06.2022.

For Appellants : Dr.A.Thiyagarajan, Senior Counsel for Mr.Nallathambi in both OSAs For Respondents : Mr.P.Ganesan in both OSAs

COMMON JUDGMENT

(Judgment of the Court was delivered by R. MAHADEVAN, J.)

The parties to the proceedings are one and the same and that, the issues involved in both the appeals are inter-connected and hence, they were heard together and are disposed of by this common judgment.

2. Brief facts, as have been averred in these appeals, are as follows:

2.1. The appellants herein are the legal heirs of one Late N.Kandasamy.

The first and second appellants are the daughters of the said Kandasamy; and the appellants 3 and 4 are the wife and son of the only deceased son of the said Kandasamy. The deceased Kandasamy executed a Will dated 27.03.2004 in favour of all the legal heirs and he died on 07.05.2004. After his death, the appellants filed O.P.No.51 of 2006 praying for letters of administration of the said Will. The respondents herein raised objections for probate of the Will.

Hence, the said O.P. was converted into TOS No.15 of 2006 on 02.02.2006.

2.2. While so, claiming that the first respondent is the legally wedded wife and the second respondent is the test tube baby of the deceased Kandasamy, the respondents herein filed OP (D) No.3299 of 2006 on 02.02.2006 praying for letters of administration of a Will dated 11.07.2002 allegedly executed by the deceased Kandasamy in their favour. There was enormous delay in re-presenting the papers in OP (D) No.3299 of 2006, but the same was condoned and the petition was numbered as O.P.No.18 of 2018. Challenging the order dated 11.04.2018 in A. No. 1305 of 2018, the appellants preferred an appeal in OSA. No.300 of 2018.

2.3. During the proceedings in OSA No.300 of 2018, this Court directed the appellants and the first respondent to file a consent affidavit for subjecting themselves for a DNA test to prove the paternity of the second respondent K.Abhinaya (Minor) born to the first respondent and the deceased Kandasamy through test tube. Pursuant to the same, the appellants filed a consent affidavit for DNA test, but the first respondent did not file consent affidavit. Thereafter, the appeal came to be disposed of, on 14.02.2019 and subsequently, the aforesaid Original Petition filed by the respondents was converted into TOS No.34 of 2019.

2.4. In the above circumstances, the appellants filed A.No.5657 of 2019 in OP No.18 of 2018, for ordering the DNA test of the second respondent and comparing the same with the sample of the second appellant, stating inter alia that the first respondent came to their house as servant maid and taking advantage of old age of the parents of the appellants 1 and 2, she fabricated the documents and obtained a forged Will dated 11.07.2002 as if she is the legally wedded wife of the deceased Kandasamy and the second respondent is born to him through test tube. It was further stated that the mother of the appellants 1 and 2 was well alive at that point of time and she never gave consent to the first respondent for the marriage wi