C.R.P(MD)No.1472 of 2022

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 28.03.2023

CORAM:

THE HONOURABLE MR.JUSTICE C.SARAVANAN

C.R.P(MD)No.1472 of 2022

and

C.M.P(MD)No.6089 of 2022

1.N.Porselvi

2.V.Vijayalakshmi

3.S.Latha Maheswari

... Petitioners/Respondents/

Defendants

-vs-

1.R.Udhayachandrika

... Respondent-1/Petitioner-1/

1^st Plaintiff

2.R.Ranjithkumar

3.Minor R.Saktheeshkumar

... Respondents 2-3/

(Rep by through his natural

Petitioners2-3/Plaintiffs2-3

guardian of 1^st Respondent)

PRAYER: Civil Revision Petition is filed under Article 227 of the Constitution

of India, to call for the records relating to the impugned fair and decreetal order

dated 20.04.2022 and made in I.A.No.3 of 2021 in O.S.No.56 of 2017 on the file

of the learned Additional District Judge, Sivagangai, set aside the same and allow

this Civil Revision Petition.

For Petitioner

: Mr.S.Srinivasaraghavan

For R2&R3

: Mr.Sarvagan Prabhu

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C.R.P(MD)No.1472 of 2022

O R D E R

The petitioners are the plaintiffs in O.S.No.56 of 2017 on the file of the

Additional District Court, Sivagangai.

2.The suit has been filed by the petitioners for partition. It is submitted that

the property stood in the name of the petitioners' father. The husband of the first

respondent and the father of the second and third respondents (defendants

therein) viz., Ravichandran, was the brother of the petitioners. In the aforesaid

suit, the respondents herein had filed an application under Order 16 Rule 6 r/w.

Section 151 of C.P.C., to summon the Deputy Sub-Registrar, Karaikudi to give

evidence regarding the execution and genuineness of the Will. The said petition

was allowed. Aggrieved by the same, the present Civil Revision petition has been

filed by the petitioners.

3.The learned counsel appearing for the petitioners would submit that the

trial Court has committed a grave error in allowing the application filed by the

respondents/defendants to summon the Deputy Sub-Registrar, Karaikudi, to give

evidence regarding the genuineness and execution of the Will. It is submitted that

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C.R.P(MD)No.1472 of 2022

the alleged Will has been executed on16.08.2004 which is allegedly witnessed by

the husband of the second and third petitioners. Therefore, they could be

summoned to give evidence in terms of Section 68 of the Indian Evidence Act,

1872. It is further submitted that though the date of alleged Will is 16.08.2004, it

was registered just one day prior to the death of the petitioners' father, ie., the

petitioners' father died on 02.10.2004 and the said Will was registered on

01.10.2004.

4.The learned counsel appearing for the respondents would submit that the

order of the trial Court is just and reasonable and need not be interfered with.

5.It is submitted that the attesting witnesses are the husbands of the 2 and 3

petitioners and therefore, it cannot be expected that these attesting witnesses will

come forward to depose proper and unbiased evidence before the Trial Court.

6.I have considered the arguments advanced by the learned counsel

appearing for the petitioners and the learned counsel appearing for the

respondents.

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C.R.P(MD)No.1472 of 2022

7.In my considered view that the trial Court has committed an error in

summoning the Deputy Sub-Registrar -II, Karaikudi, to give evidence regarding

the execution of the Will and its genuinity. Admittedly, the Will was not executed

in front of the said Officer viz., Deputy Sub-Registrar -II, Karaikudi, as it was

purportedly executed on 16.08.2004. The said Will was purportedly produced for

registration on 01.10.2004 and thereafter, the attestor viz., Mr.Thiyagarajan @

Narayanan died on 02.10.2004. Therefore, there is no merit in the impugned order

passed by the learned Additional District Judge, Sivagangai, in I.A.No.3 of 2021.

Hence, the impugne