Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(Online)(Mad) 63871

2025:MHC:2435 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13-10-2025 CORAM THE HONOURABLE MR JUSTICE S. M. SUBRAMANIAM AND THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ OSA No. 319 of 2025 and CMP No. 23668 of 2025 Geetha Mani Elango Appellant(s)
Vs
1.Gowri Rajan
2.Shanthi Vinod
3.Kala Yuvaraj 4.R.Jayashree
5.R.Akash
6.R.Sreenesh Respondent(s)
PRAYER Original Side Appeal has been filed under Order XXXVI Rule 9 of the Original Side Rules, 1994 and Clause 15 of Letters Patent of 1865, praying to pass an order to set aside the Judgment and decree dated 03.12.2024 passed in Appl.No.4856 of 2024 in O.P.No.155 of 2024 on the file of the Original side of this Court and thereby allow the appeal.
For Appellant(s): Mr.R.Abdul Mubeen For Mr.D.S.RA.P.Pratap Singh

Advocates:
For the Appellants/Petitioners: Mr.R.Abdul Mubeen
For the Respondents: Mr.D.S.RA.P.Pratap Singh

Court holds that procedural lapses do not deny parties the right to contest in probate matters.

Headnote:This appeal seeks to challenge the order dated 03.12.2024 passed in O.P.No.155 of 2024 concerning the grant of probate under the Indian Succession Act. The court found that the procedural lapses in filing an affidavit do not warrant denial of the objectors’ opportunity to contest. The appeal was dismissed, and no costs were awarded.

JUDGMENT

(Judgment was delivered by S.M.Subramaniam J.)

The present original side appeal has been instituted to assail the order dated 03.12.2024 passed in Application No.4856 of 2024 in O.P.No.155 of 2024.

2. The appellant has instituted Original Petition In the matter of Indian Succession Act XXXIX of 1925, seeking grant of probate of the Last Will and Testament of Late Dr.A.Ganesan. The learned counsel for the appellant would submit that summons served on the respondents on 05.04.2024 and they entered appearance on 30.04.2024. However, caveat was filed on 29.07.2024. Therefore, the said caveat is hit by Order XXV Rules 51 and 52 of the Madras High Court Original Side Rules. The affidavit in support of the caveat has not been filed within the time line prescribed under Order XXV Rule 52. Therefore, dismissal of application is not in consonance with the procedures contemplated under the Madras High Court Original Side Rules.

3. The High Court has powers under Order I Rule 7 to condone the delay in filing affidavit in support of the caveat.

4. However, this Court is of the considered view that it would be harsh to deny the objectors an opportunity to defend the petition. All petitions are to be decided after complete adjudication and by affording opportunities to the parties. Certain violation of procedures, which all are condonable, need not be a ground to deny an opportunity, to contest the case.

5. Procedural lapses, whether condonable or uncondonable, are to be examined by the Courts, while considering the applications. The delay in filing an affidavit along with the caveat cannot be construed as an uncondonable delay. Thus, this Court is inclined to condone the delay in order to provide an opportunity to the respondents to defend their case.

6. In view of the said factum, the order impugned dated 03.12.2024 passed in Application No.4856 of 2024 in O.P.No.155 of 2024 is confirmed and the Original Side Appeal is dismissed. No costs.

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