Madras High Court
Boovalingam(Died) vs Ariraman on 21 December, 2018
Author: J.Nisha Banu
Bench: J.Nisha Banu
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 21.12.2018
(Reserved on 29.11.2018)
CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
C.R.P(PD)(MD)No.2617 of 2018
and
C.M.P(MD)No.11477 of 2018
Boovalingam(died)
Petchiappan ... Petitioner
vs.
Ariraman ... Respondent
Petition filed under Article 227 of the Constitution of India,
against the order dated 07.09.2018 passed in I.A.No.324 of 2018 in
O.S.No.52 of 2016 on the file of the District Munsif Court, Kovilpatti.
For Petitioner : Mr.V.Arunachalam
ORDER
This revision petition has been filed against the order dated 07.09.2018 passed in I.A.No.324 of 2018 in O.S.No.52 of 2016 on the file of the District Munsif Court, Kovilpatti.
http://www.judis.nic.in 2
2.According to the revision petitioner, his father filed a suit for redemption of mortgage against the respondent/defendant in O.S.No.52 of 2016 on the file of the District Munsif Court, Kovilpatti and during the pendency of the same, he expired on 13.11.2017. According to the petitioner, his father executed a will in his favour on 03.07.2017 bequeathing all his properties and therefore, he has filed an application in I.A.No.324/18 to implead himself as second plaintiff in the suit which was dismissed by the Court below. Hence, this revision petition. In support of his contention, the petitioner relied on a decision in Arjun Prasad and others vs. Biteshwar Singh reported in AIR 1982 PATNA 208.
3.The respondent/defendant contested the said application and filed counter contending that there is no averment in the said application whether the alleged will is registered one and only after the will is probated, the will can be considered to be a valid and genuine will and that there are other legal heirs of the deceased http://www.judis.nic.in 3 plaintiff who are necessary parties to be impleaded and without impleading them, impleading the petitioner alone is not proper for effective adjudication of the suit.
4.Though the registration of the will is not compulsory, it can be registered with the Sub Registrar and if at any time the testator wishes to withdraw the will, he can do so. A will also can be sealed and kept in safe custody. On the death of the testator, an executor of the will or a heir of the deceased testator can apply for probate. The court will ask the other heirs of the deceased whether they have any objections to the will. If there are no objection, the court will grant probate. A probate is a copy of a will certified by the court and is conclusive evidence that the will is genuine.
5.As per the judgment in C.Rajendran v. M.Senthilkumar reported in 2003 (1) LW 43, unprobated Will can be relied upon only for collateral purposes and the Hon'ble Supreme Court in Hardev http://www.judis.nic.in 4 Singh V. Gurmeet Singh reported in 2007 (2)CTC 78, has also held that if the Will is not probated, then the general rule of succession will have to be followed and therefore, it is necessary that the other legal heirs have to be impleaded to establish the genuinity of the will and since all the legal heirs were not impleaded to prove the genuinity of the will, the learned Judge has rightly dismissed the application.
6.In the decision relied on by the petitioner in Arjun Prasad and others vs. Biteshwar Singh reported in AIR 1982 PATNA 208, it has been held that universal legatee upon prima facie proof that he is the legal representative, is entitled to be substituted as the legal representative in place of the deceased testator whose legal representative he claims to be under the will, even if no probate or letters of administration with a copy of the will annexed has not been granted in respect of that will. It is not in dispute that the legatee as legal representative of the deceased testator is entitled to http://www.judis.nic.in 5 be impleaded in the place of testator, but that is not the issue here. In the present case, there are other legal heirs other than the revision petitioner and the alleged will is not made in a stamp paper and therefore, the petitioner has to prove the will by the no objection given by other heirs, for which, impleadment of other heirs is necessary. Therefore, the said judgment is not applicable to the present case. In my considered opinion, the impugned order does not warrant interference by this Court.
Accordingly, this Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
Index : Yes / No 21.12.2018
Internet : Yes / No
To
The District Munsif,
Kovilpatti.
http://www.judis.nic.in
6
J.NISHA BANU, J
bala
C.R.P(PD)(MD)No.2617 of 2018
21.12.2018
http://www.judis.nic.in