A.No.4262 of 2022 in T.O.S.No.12 of 2021

A.No.4262 of 2022

in

T.O.S.No.12 of 2021

Reserved on

26.10.2022

Pronounced on

04.11.2022

G.CHANDRASEKHARAN

, J.

This application is filed to eschew the proof affidavit dated

10.08.2022 and the averments in the proof affidavit in paragraph 9, 13 to

27 and eschew the documents to be marked as Exhibits A1, A5, A6, A11,

A12, A13, A14, A15, A16 and A17.

2.The learned counsel for the applicants submitted that the

respondent filed O.P.No.164 of 2020 for grant of letters of administration

in respect of the alleged Will and Testament of late C.Shyamalavalli.

Since the applicants had entered caveat, O.P.No.164 of 2020 was

converted into Testamentary Original Suit and numbered as T.O.S.No.12

of 2021.

3.The defendants have filed detailed written statement. Issues had

been framed and the matter was pending before the learned Master for

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A.No.4262 of 2022 in T.O.S.No.12 of 2021

recording of evidence. PW1 filed proof affidavit and it contained

irrelevant particulars and details, which are alien to the testamentary

proceedings. The only issue which arise for consideration of this Court is

that whether the alleged Will projected by the plaintiff is true, genuine

and it was executed by the testatrix on her own volition or not? However,

the plaintiff had mentioned about various civil litigations which are

pending before the Courts. Suit filed in C.S.No.252 of 1996 by the

applicants' father's aunt Smt.Saraswathi Ammal and paternal

grandfather's sister is pending before this Court. The suit filed by the

respondent in C.S.No.476 of 2008 is also pending before this Court.

Late.Shyamalavalli filed a suit in C.S.No.949 of 2004 against her son

Late.C.Sathyanarayanan, father and mother of the defendants for

dissolution of partnership and rendition of accounts. T.O.S.No.1 of 2004

was filed by their late father C.Sathyanarayan prior to filing of

O.P.No.255 of 2022 on the basis of the last Will and Testament of late

E.K.Pattabirama Reddiar, dated 22.10.1982. The respondent produced

nearly 17 documents treating the testamentary proceedings as a civil suit.

Ex.A1 Will of Late C.Shyamalavalli has to be received only through the

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A.No.4262 of 2022 in T.O.S.No.12 of 2021

attesting witness. Exs.A5 and A6 are the photocopy of first Will of Late

C.Shyamalavalli and cancellation of the Will. Photocopies cannot be

received as evidence. Late C.Shyamalavalli was not capable of

understanding English. Since the jurisdiction of this Court is confined

only to the genuineness and validity of the Will, other irrelevant

particulars or details which are alien are totally unnecessary for

adjudication of the issue involved in this case are to be eschewed.

Therefore this petition.

4.The learned counsel for the respondent submitted that there is no

provision in C.P.C. to eschew the evidence. The applicants made several

allegations running to 23 paragraphs of 16 pages written statement, with

the documents, inviting reply statement. After filing the reply statement,

issues were framed. The proof affidavit is filed on the basis of the

averments made in the plaint, written statement and reply statement.

Even in the application filed for eschewing the evidence, several alien

factors had been brought in. If the allegations made in the written

statement are not denied and not controverted, the applicants would claim

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A.No.4262 of 2022 in T.O.S.No.12 of 2021

that the uncontroverted allegations are deemed to be admitted. Therefore,

a detailed proof affidavit is filed. The Will was already identified at the

time of filing. The respondent filed documents to disprove the

defendants' case and substantiate her case. Even before m