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2026 Supreme(Online)(Mad) 57071
IN THE HIGH COURT OF JUDICATURE AT MADRAS
K. Murali Shankar, J
N. Swaminathan – Appellant
Versus
V. Amirtham – Respondent
C.M.A(MD)No.299 of 2026
For the Appellants/Petitioners: M. Kannan
For the Respondents: M. Dennis Joe
Parallel probate proceedings are not maintainable when the validity and genuineness of the same Will are already under active adjudication in pending partition proceedings between the same parties, to avoid multiplicity of litigation and inconsistent judicial findings.
Headnote:(A) Indian Succession Act, 1925 - Sections 213, 276 - Indian Evidence Act, 1872 - Section 68 - Code of Civil Procedure, 1908 - Order VII Rule 11, Section 11 - Probate proceedings - Rejection of plaint - Parallel proceedings - The trial court rejected the probate petition on the grounds of non-production of the original Will, res judicata, and lack of maintainability under Section 213(2) of the Indian Succession Act regarding the Will of Indian Christians. The High Court held that the non-production of the original Will is not fatal if it is already subject to pending civil litigation; the plea of res judicata is not maintainable under Order VII Rule 11 CPC; and that the Indian Succession Act does not bar Christians from seeking probate. However, the court upheld the rejection of the probate petition on the ground that initiating separate testamentary proceedings while the validity of the same Will is already under adjudication in a pending partition suit creates a risk of inconsistent findings and constitutes an unnecessary parallel proceeding.
Facts of the case:
The appellants filed a Probate O.P. to validate a Will executed by their deceased brother. The respondents, heirs of another deceased brother, sought the rejection of this petition, relying on prior ongoing civil litigations (partition suits and revocation petitions) where the same Will was already being contested. The trial court rejected the Probate O.P. based on Section 276, Section 68 of the Evidence Act, and Section 213 of the Indian Succession Act.
Findings of Court:
While the specific reasons cited by the trial court (res judicata and maintainability under s 213) were overruled as legally unsustainable, the High Court affirmed the ultimate rejection of the probate application on the basis that parallel proceedings are improper when the genuineness of the same document is already subject to active adjudication in a civil suit.
Issues: Whether the trial court was justified in rejecting the probate petition on grounds of non-production of the Will, res judicata, and maintainability concerns; and whether parallel probate proceedings are permissible during ongoing partition suits involving the same Will.
Ratio Decidendi: A party cannot simultaneously invoke testamentary jurisdiction for probate while the genuineness of the identical Will is being contested in a pending partition suit, as it risks multiplicity of proceedings and conflicting judicial findings.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. background and procedural history of the will and ongoing partition litigation. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. analysis of procedural grounds for rejection including res judicata and section 213(2). (Para 7 , 8 , 9 , 10 , 11 , 12) |
| 3. prohibition of parallel proceedings when validity of the same will is sub judice. (Para 13 , 14 , 15 , 16 , 17 , 18) |
JUDGMENT
1. This Civil Miscellaneous Appeal is directed against the order passed in I.A.No.2 of 2023 in Probate O.P.No.14 of 2023, dated 02.02.2024, on the file of the Additional District Court, (Fast Track Court), Kanyakumari at Nagercoil, rejecting the Probate O.P.
2. For the sake of convenience and brevity, the parties will hereinafter be referred as per their status/ranking in the original petition.
3. The relationship not in dispute is that the frist respondent N.Swaminathan, Thangappan Nadar and Alankamony are brothers, that the respondents 2 and 3 are the sons of the first respondent, that the first petitioner is the wife, the second petitioner is the daughter and the third petitioner is the son of the deceased Alankamony and that the other brother Thankappan Nadar died issueless. The respondents alleging that Thankappan Nadar executed a registered Will dated 13.08.1991 bequeathing his properties to his brother Swaminathan – first respondent and his sons S.G.Livingston and S.G.Gladston - the respondents 2 and 3 and that the said Thankappan Nadar died issuless on 16.07.1992 and hence, the Will became operative and the properties devolved upon the respondents, filed a Probate O.P.No.14 of 2013 before the Additional District Court, Nagercoil seeking orders to probate the Will executed by the said Thankappan Nadar. Pending the above Probate O.P., the petitioners filed a petition under Order VII Rule 11 C.P.C., seeking rejection of the Probate O.P., in I.A.No.2 of 2023. The respondents/petitioners filed their counter raising objections. The learned Additional District Judge, after enquiry, passed the impugned order dated 02.02.2024, allowing the petition filed under Order VII Rule 11 C.P.C., and thereby rejected the Probate O.P.No.14 of 2023. Aggrieved by the order of rejection, the respondents/petitioners have preferred the present Civil Miscellaneous Appeal.
4. It is not in dispute that the respondents have earlier filed a Probate O.P.No.20 of 1992 before the Subordinate Court, Nagercoil, to probate the Will dated 23.08.1991 executed by the deceaed Thankappan Nadar and obtained probate vide order dated 23.06.1993. The first respondent's brother Alankamony filed a suit in O.S.No.581 of 1993 alleging that their brother Thankappan Nadar died intestate and claimed partition and allotment of 1/2 share in the properties. The said Alankamony also filed a petition in O.P.No.27 of 1996 for revocation of probate granted in O.P.No.20 of 1992. The said Alankamony also filed a suit in O.S.No.48 of 1993 before the Subordinate Court, Padmanabhapuram seeking specific performance of the sale agreement dated 10.10.1986. The Principal District Munsif Court, Padmanabhapuram, after trial, allowed the suit in O.S.No.581 of 1993 and granted a preliminary decree for 1/2 share in the suit properties. The respondents preferred an appeal in A.S.No.77 of 1995 before the Subordinate Court, Padmanabhapuram. The said first appeal in A.S.No. 77 of 1995 came to be allowed vide judgment and decree dated 23.07.2012 setting aside the judgment and decree passed in O.S.No.581 of 1993 and remanded the case back to the trial Court. The petitioners preferred an appeal in C.M.A.(MD)No.1388 of 2012 challenging the remand order and this Court, vide order dated 06.03.2013, partly allowed the appeal and thereby setting aside the order of remand and directed the first appellate Court to forward the Will to the trial Court and directed the trial Court to record the evidence to be adduced by both sides and to submit a finding to the first appellate Court with regard to the Will dated 23.08.1991.
5. It is admit
