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2023 Supreme(Online)(MAD) 43063
MADRAS HIGH COURT
DEBA PRASAD ROY – Appellant
Versus
Dr.Debashish Roy – Respondent
CS 296 2019
An unregistered Will cannot be given any significance in the eye of law if it is not proved in the manner known to law and is attached with serious suspicious circumstances.
Headnote:
WILL - REVOCATION - UNREGISTERED WILL - PROOF - SUSPICIOUS CIRCUMSTANCES - PARTITION - IMPROVEMENT CHARGES -
Fact of the Case:
The plaintiff filed a suit for partition of the suit property, claiming that he is entitled to one half share in respect to the suit schedule mentioned property. The defendant resisted the suit on the ground that his mother had left an unregistered Will bequeathing the land in his favor.
Finding of the Court:
The court held that the unregistered Will projected by the defendant has not been proved in the manner known to law and attached with serious suspicious circumstances and thus, cannot be given any significance in the eye of law. The court also held that the plaintiff is entitled to partition as per the registered Will which has been proved before the court in O.P.Nos.99 and 100 of 2011.
Issues: 1. Whether the plaintiff is entitled for relief of partition as prayed for?2. To what other relief?
Ratio Decidendi: 1. The court held that the unregistered Will projected by the defendant has not been proved in the manner known to law and attached with serious suspicious circumstances and thus, cannot be given any significance in the eye of law.2. The court also held that the plaintiff is entitled to partition as per the registered Will which has been proved before the court in O.P.Nos.99 and 100 of 2011.
Final Decision: The suit is decreed and a preliminary decree is passed for dividing the Suit properties into two equal shares and one such share is allotted to the plaintiff and the remaining half share will go to the defendant subject to payment of Court fee in the final decree proceedings.
C.S.NO.296 OF 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.12.2023
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.S.NO.296 OF 2019
AND
A.NO.3405 OF 2019 IN C.S.NO.296 OF 2019
AND
A.NO.4905 OF 2023 IN O.P.NO.99 OF 2011
Deba Prasad Roy
..
Plaintiff
Versus
Dr.Debashish Roy
..
Defendant
PRAYER: Plaint filed under Order IV Rule 1 of the Original Side Rules read
with Order VII Rule 1 of Civil Procedure Code praying for the judgment and
decree against the defendants as follows:
(a)To pass a preliminary decree that the plaintiff is entitled to
one half share in respect to the suit schedule mentioned property;
(b)To appoint an Advocate Commissioner and direct division of
the property by metes and bounds by passing a final decree;
(c)To divide the rental income derived from the suit property into
two shares and allot one share to the plaintiff from the date of management
i.e., 10.08.2012 till the date of plaint as per the statement enclosed amount to
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C.S.NO.296 OF 2019
Rs.45,45,000/- and further direct the defendant to remit the plaintiff's half
share of the present rent of Rs.1,50,000/- per month being collected by the
defendant from the date of plaint till the date of delivery of possession of the
plaintiff's share to the plaintiff;
(d)To pay cost of the Suit.
For Plaintiff
:
Mr.P.Giridharan
Mr.H.Siddarth
For Defendant
:
Mr.C.T.Mohan
J U D G M E N T
The Suit has been filed for a preliminary decree that the plaintiff
is entitled to one half share in respect to the Suit schedule mentioned
property; to appoint an Advocate Commissioner and direct division of the
property by metes and bounds by passing a final decree; and to divide the
rental income derived from the suit property into two shares and allot one
share to the plaintiff from the date of management i.e., 10.08.2012 till the
date of plaint as per the statement enclosed amount to Rs.45,45,000/- and
further direct the defendant to remit the plaintiff's half share of the present
rent of Rs.1,50,000/- per month being collected by the defendant from the
date of plaint till the date of delivery of possession of the plaintiff's share to
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C.S.NO.296 OF 2019
the plaintiff.
2.The plaintiff and the defendant are brothers. It is the case of
the plaintiff that the suit schedule property was originally belonged to the
parents of the plaintiff and defendant. The plaintiff's father Late D.N.Roy had
executed a Will dated 17.08.1987 which was registered as Document No.63
of 1987 in the Office of the Sub Registrar, T.Nagar, Chennai, bequeathing the
superstructure of the suit schedule property equally in favour of the plaintiff
and the defendant. Similarly, her mother Late Parula Bala Roy also executed
a Will dated 17.08.1987, which was registered as Document No.64 of 1987
in the Office of the Sub Registrar, T.Nagar, Chennai, bequeathing the land
situated in Thirumalai Pillai Road, T.Nagar, Chennai, measuring 2 Grounds
and 2227 sq.ft equally in favour of the plaintiff and the defendant. The
plaintiff's father died on 31.10.1994 and his mother died on 08.04.2007
leaving behind them, the plaintiff, defendant and two daughters as their legal
heirs.
3.After the demise of the parents of the parties, the plaintiff filed
Original Petitions in O.P.Nos.99 of 2011 and 100 of 2011 for grant of Letters
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C.S.NO.296 OF 2019
of Administration in respect of the Will dated 17.08.1987 executed by his
father and the Will dated 17.08.1987 executed by his mother. The sisters of
the plaintiff were arrayed as party respondents and also filed their consent
affidavits for grant of Letters of Administration in favour of the plaintiff. This
Court has granted Letters of Administration in favour of the plaintiff by order
dated 10.08.2012 and the Certificate of Letters of Administration was also
issued in favour of the plain
