Santhanalakshmi & Anr vs N.Balamurugan

This Civil Revision Petition has been filed by the petitioners to set aside the order passed by the learned VI Additional District Judge, Madurai,

dated 03.03.2017 in I.A.No. 173 of 2017 in O.S.No.124 of 2007.

The relevant facts narrated by the petitioners in the affidavit are as follows:

2.i) The first respondent/plaintiff has filed the suit in O.S.No.124 of 2007 on the file of the VI Additional District Judge, Madurai for the relief of

Partition.

2.ii) The entire case of the plaintiff namely, the first respondent herein, rests upon a Will dated 01.06.1989, alleged to have been executed by the

mother of the revision petitioners namely, (Late) Rakkammal. The first respondent herein, as the plaintiff, has not chosen to prove the Will in

accordance with law. He had let in oral evidence and filed documents, which includes the certified copy of the Will and no sufficient materials have

been advanced for non-production of the original Will.

2.iii) The first respondent had chosen to examine himself as the only witness on his side and closed his evidence. Thereafter, the contesting

defendants had let in evidence. The first revision petitioner was examined as defendant''s side witness and she was cross-examined by the first

respondent in detail. After closure of evidence, the matter was posted for arguments, at which time, the first respondent, in order to drag on the

matter, had chosen to file petition after petition, such as re-open petition, petition to receive additional documents, petition to recall the first revision

petitioner for further examination.

2.vi) The first respondent/plaintiff had filed a petition in I.A.No.969 of 2014 for re-opening of trial and for scientific examination of the thumb

impression of the said Rakkammal in the alleged Will to compare the same with that of the thumb impressions available in documents that are

alleged to have been admitted. A detailed counter was filed by the revision petitioners. After hearing both the parties, the trial court had dismissed

the said application.

2.v) Against the said order of dismissal, the first respondent filed C.R.P(MD).No.752 of 2016 on the file of this Court. On 31.01.2017, this Court

dismissed the above Civil Revision Petition thereby confirming the order of the trial court.

On the above background of the case, the learned counsel for the petitioners submitted that after dismissal of earlier Civil Revision Petition, the

first respondent/ plaintiff had once again filed an application in I.A.No.173 of 2017 to appoint an Advocate Commissioner for collecting the

relevant documents from the Sub-Registrar Office and to send the same for comparison of the thumb impression of Rakkammal in the alleged Will

with that of those documents and the said application was allowed by the trial court.

The learned counsel has mainly attacked the order passed by the trial court on three specific grounds. The first ground is that the trial court has

not considered the fact that the relief sought for in both applications are one and the same. The second ground is that the trial court by applying the

legal proposition ''res judicata'', should have dismissed the application. The third ground is that the trial court has not considered the spirit of the

order passed by this Court in the earlier Civil Revision Petition.

Per contra, the learned counsel for the first respondent/plaintiff has submitted that the first respondent has preferred the present suit for partition

solely on the recitals of the said Will and therefore, it is his duty to prove the Will by substantiating oral and documentary evidences before the

Court. He further submit one Mrs.Rakkammal had already executed three sale deeds with regard to her absolute properties. The said Rakkammal

had executed those sale deeds by her free consent and with a conscious mind, wherein her husband E.Chellaiah Servai stood as one among the

witnesses, which would prove the genuineness of the documents. Adding further, the learned counsel submits that since the cited sale deeds are

prior to the execution of the disputed Will, it is very much essential to bring the expert for scientific examination for those documents in accordance

with law. Therefore, the trial court has viewed the matter in a right perspective and allowed the application and he prays for dismissal of this Civil

Revision Petition.

I have paid my anxious attention to the rival submissions made on either side. I have carefully perused the documents available on record.

Though so many points have been raised by the learned counsel appearing for the petitioners as well as the learned counsel appearing for the

first respondent, the only point for consideration is that whether the learned VI Additional District Judge, Madurai, was right in allowing the

application in I.A.No.173 of 2017 in O.S.No.124 of 2007.

Perusal of record would show that the only difference between the earlier petition and the present petition was that in the earlier petition, the first

respondent has sought for sending for the thumb impression books from the relevant sub-registry to the Hon''ble Court''s file. In the later petition,

the first respondent sought for appointment of Advocate Commissioner for the very specific purpose of visiting the relevant Sub-Registrar Offices

to collect the thumb impression book for the very same purpose of getting opinion from the expert.

In the said circumstances, I am of the considered view that the only remedy left open to the first respondent/plaintiff is to file a Special Leave

Petition before the Hon''ble Supreme Court against the earlier order passed by this Court and the first respondent cannot resort to file subsequent

Interlocutory Application in I.A.No.173 of 2017 and the trial court ought not to have allowed the application. The order passed by the trial court is

erroneous and the same is set aside.

In the result, this Civil Revision Petition is allowed. No costs. Consequently, connected C.M.P.(MD)No. 5055 of 2017 is closed.