Madras High Court
N.Ashish Karwa vs Minor Abhiyantha Surekha on 10 October, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10/10/2012 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN TR.CMP.(MD).No.220 of 2012 & M.P.(MD)No.1 of 2012 N.Ashish Karwa ... Petitioner Vs. Minor Abhiyantha Surekha ... Respondent PRAYER Transfer Civil Miscellaneous Petition is filed under Section 24 of C.P.C. to withdraw the Revocation Probate O.P.No179 of 2012 from the file of the learned Subordinate Judge, Tuticorin and transfer the same to the file of the learned Principal District Judge, Tuticorin to be tried along with O.S.No.28 of 2011, now pending on his file. !For Petitioner ... Mr.G.Jeremiah ^ ******* :ORDER
The short facts of the case are as follows:-
The petitioner herein has filed revocation petition in O.P.No.179 of 2012, on the file of Sub Court, Thoothukudi to revoke the probate granted in O.P.No.16 of 2007 , dated 28.06.2007 in respect of the Will dated 06.06.2006 executed by the Late Shri.Hari Prasad Sureka and the original proceedings in O.P.No.16 of 2007 to reopen after including all necessary parties, i.e., legal heir of the deceased Hari Prasad Sureka.
2. Learned counsel for the petitioner submitted that the respondent herein has filed a probate in O.P.No.16 of 2007, on the file of Sub Court, Thoothukudi stating that the respondent minor, viz., Abhiyantha Surekha is the grand daughter of the deceased Hari Prasad Sureka, who had executed a Will on 06.06.2006, bequeathing the scheduled mentioned properties to her. The testator died on 06.11.2006. Thereafter, the probate O.P. has been filed and the same was ordered on 28.06.2007. Learned counsel further submits that the petitioner herein is the auction purchaser of the property situated in survey No.1409/3A of Meelavittan Village admeasuring 74 cents which is the subject matter of the probate granted in O.P.No.16 of 2007, dated 28.06.2007 in respect of the Will dated 06.06.2006 alleged to have been executed by the late Hari Prasad Sureka. The mother of the minor respondent herein had filed a suit in O.S.No.5 of 2010 against the petitioner, Tamil Nadu Industrial Investment Corporation Limited and M/s.Krishna Trading Corporation. The said suit had been laid in respect of 1/3 share to an extent of 74 cents of land comprised in Survey No.1409/3A, Meelavittan Village, Thoothukudi Taluk. The said land had been mortgaged to Tamil Nadu Investment Corporation in the year 1999 as collateral security for financial assistance obtained by Sri Krishna Trading Corporation. The said property was auctioned on 30.11.2007 and the petitioner herein was the successful bidder, as such, the petitioner is the absolute owner of the property.
3. The learned counsel further submitted that O.S.No.28 of 2011, O.S.No.592 of 2005 and O.S.No.29 of 2011 are pending on the file of Principal District Judge, Thoothukudi. In the said suits, the father of the minor respondent herein has filed a proof affidavit and showed the probate certificate issued in O.P.No.16 of 2007 a documentary evidence. The learned counsel further submitted that the Will is not a valid one since it has not been attested by any attesting witnesses as required under Section 63 of the Indian Succession Act. This fact came to the knowledge of the petitioner herein on 26.06.2012. The respondent herein made a misrepresentation before the Sub Court, Thoothukudi and obtained letter of administration. The respondent wantonly and deliberately omitted the necessary parties viz., Tamil Nadu Industrial Investment Corporation Limited, who is having rights over the said property, since the property is mortgaged in favour of them.
4. Learned counsel further submits that the none of the legal heirs of the deceased Hari Prasad Sureka, the testator had been included as necessary parties without giving notice or sufficient opportunities to the legal heir of the deceased testator, the letter of administration was granted in favour of the respondent herein. Therefore, the petitioner herein filed a petition in revocation probate O.P.No179 of 2012 has been filed by the petitioner to set- aside the order passed in O.P.No.16 of 2007, dated 28.06.2007. The said petition is pending on the file of Sub Court, Thoothukudi. Now the concerned suit properties are the subject matter of the Will. Therefore, the learned counsel for the petitioner entreats to transfer the O.P.No179 of 2012 along with connected records in O.P.No.16 of 2007 to the Principal District Judge, Tuticorin to be tried along with O.S.No.28 of 2011.
5. The Court has permitted the petitioner counsel to send a private notice and accordingly the counsel sent the notices to the respondent and the same was served on her, proof also filed. Even though she has not chosen to appear before this Court. Hence, this Court is constrained to pass final order.
6. On verifying the facts and circumstances of the case and on hearing the arguments advanced by the learned counsel for the petitioner, this Court is of the view that the original order passed in O.P.No.16 of 2007, dated 28.06.2007 is in force, besides set-aside petition in O.P.No.179 of 2012 is still pending, therefore, until disposal of the revocation probate O.P.No.179 of 2012 by the Sub Judge, Thoothukudi, the transfer petition is not maintainable since the original order is passed by the Sub Judge, Thoothukudi. Therefore, the learned Subordinate Judge, Thoothukudi is the competent judge to determine the veracity of the Will dated 06.06.2006. Hence, this Court is declined to allow the transfer miscellaneous petition in Tr.M.P.No.220 of 2012. However, considering the nature of the case, this Court directs the learned Sub Judge, Thoothukudi to dispose the case in revocation probate in O.P.No179 of 2012 in probate O.P.No.16 of 2007 on or before 31.11.2012 on merits and on top most priority basis without being influenced by the discussions of this Court.
7. Resultantly, the above Transfer Civil Miscellaneous Petition (MD)No.220 of 2012 is dismissed. Consequently, connected miscellaneous petition is closed. Accordingly ordered.
r n s To
1. The Subordinate Judge, Tuticorin
2. The Principal District Judge, Tuticorin.