C.R.P.(MD).Nos.1702 & 1703 of 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on : 13.10.2023

Delivered on: 18.10.2023

CORAM:

THE HONOURABLE MR.JUSTICE P.B.BALAJI

C.R.P.(MD)Nos.1702 & 1703 of 2017

and

C.M.P.(MD)Nos. 9311 to 9313 of 2017

1.Santha Sathiyanesan

2.D.I.Sathiyanesan

.. Petitioners / Respondents 1 &2/

Defendants 1 & 2

Vs.

R.C.Sathiyanesan (died)

1.Beula Mohan

2.Gheena Ravi

... Respondents 1 &2/ Petitioners 2,3/

LRs of Plaintiff

3.The Sub Registrar,

Sub Registrar Office,

Chokkikulam,

Madurai District.

... 3rd Respondents /3rd respondents /

3rd defendant

Prayer:- Civil Revision Petitions filed under Article 227 of the

Constitution of India, against the fair and decretal order, dated 06.07.2017,

passed in I.A.Nos.894 & 895 of 2015, in O.S.No.118 of 2012, on the file

of the District Munsif Court, Madurai Taluk.

1/21

https://www.mhc.tn.gov.in/judis

C.R.P.(MD).Nos.1702 & 1703 of 2017

(In both C.R.Ps)

For Petitioners

:

Ms.J.Anandhavalli

For Respondents

:

Mr.M.Saravanan for R1 & R2

:

Mr.A.Baskaran,

Additional Government Pleader for R3

COMMON ORDER

These Revisions are against the orders passed by the trial Court

allowing the I.A.Nos.894 and 895 of 2015, seeking to set aside the

abatement of the suit for non substitution of the legal heir of the deceased /

plaintiff and under Order XXII Rule 3 read with Section 151 C.P.C to

implead the petitioners therein as legal heirs of the deceased / plaintiff in

the suit.

2. The brief facts resulting in the filing of the present Revision

petitions are as here under:

The plaintiff had originally filed the suit seeking a declaration

that the settlement deed executed by the first defendant, his wife in favour

of the second defendant, his son, on 28.09.2005 was null and void and for

a consequential permanent injunction to restrain the defendants from

executing further documents in favour of third parties. It is the case of the

2/21

https://www.mhc.tn.gov.in/judis

C.R.P.(MD).Nos.1702 & 1703 of 2017

plaintiff that he had purchased the suit property on 17.08.1983 and on

11.09.1997, he executed a Will in favour of the first defendant, ie., his

wife. The plaintiff had left home and was not there for more than 7 years

and presuming that he was not alive, the first defendant claiming to be the

owner of the suit property and deriving right, title and interest under the

Will dated 11.09.1997, executed by the plaintiff, chose to settle the

property on her son, the second defendant. Subsequently, the plaintiff

returned home and on coming to know that his wife had executed a

settlement deed in favour their son, the plaintiff cancelled the Will

executed in favour of his wife on 04.05.2011 and thereafter, filed the suit

in O.S.No.118 of 2012 for the reliefs, which have been set out

hereinabove.

3. Pending the suit, on 20.11.2012, the plaintiff executed a Will

in favour of his daughters, who are the petitioners in I.A.Nos.894 and 895

of 2015, filed to restore the suit, seeking to implead themselves as

plaintiffs 2 and 3 and to set aside the abatement. The applications came to

be allowed by the trial Court as against which the present revision petitions

have been filed.

3/21

https://www.mhc.tn.gov.in/judis

C.R.P.(MD).Nos.1702 & 1703 of 2017

4. The grounds of challenge to the said orders passed by the trial

Court are that the cause of action did not survive the death of the plaintiff

to enable the daughters to implead themselves and prosecute the suit; the

claim of the daughters is based on an alleged Will, which was executed

subsequent to the institution of the suit; the genuineness of the Will relied

on by the daughters cannot be gone into in the present suit, as it is entirely

a different cause of action and finally that the daughters cannot step into

the shoes of the plaintiff and prosecute the suit.

5. I have heard Ms.J.Anandhavalli, le