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2014 DIGILAW 2798 (MAD)

S. Sankara Subramanian v. S. Krishnaswamy

2014-08-22

V.M.VELUMANI

body2014
Judgment : 1. This Civil Revision Petition has been filed to set aside the petition and order, dated 12.12.2013, made in I.A.No.149 of 2007 in O.S.No.31 of 1985, on the file of Sub-Court, Tenkasi. 2. The revision petitioner herein is the third defendant, whereas the first respondent is the plaintiff and the respondents 2 to 5 are the defendants 2 and 4 to 6 in the suit in O.S.No.31 of 1985 on the file of Subordinate Court, Tenkasi. The first respondent filed the suit in O.S.No.31 of 1985 against the petitioner and the respondents 2 to 5 and their mother Smt.S.Balammal, for partition and separate possession of his 8/49 share in the first schedule property and 1/7 share in the second schedule property. A Memo was filed by all the parties agreeing for partition. 3. A preliminary decree was passed on 29.06.1985 allotting shares to the parties, in which the mother of the parties was allotted 1/49 share in the first schedule property and 1/7 share in the second schedule property. No step was taken for final decree being passed for dividing the properties by metes and bounds and allotment of their respective shares to the parties. 4. Smt.S.Balammal, the mother of the parties herein, died on 04.12.2006. According to the petitioner, during her lifetime, his mother was depending on the first respondent. The first respondent was in the position of dominating their mother and her action. She died intestate and hence, the petitioner has filed I.A.No.149 of 2007, for claiming 49/294 share in the first schedule property and 1/6 share in the second schedule property from the share of his mother from and out of the property allotted to her in the preliminary decree. 5. The first respondent/plaintiff filed counter affidavit stating that no proceeding is pending. O.S.No.31 of 1985 was filed on the wrong advice to avoid estate duty, which was abolished long back. After the preliminary decree, all the properties were entrusted to the mother of the parties to be dealt by her with power of alienation. She was in good health and sound dispossessing mind. She executed her last Will on 14.02.2001, revoking all her earlier Will. It is a Holograph Will and it reads like a Novel. After the preliminary decree, a family arrangement was arrived at and the suit was abandoned and no further step was taken for 23 years. 6. She was in good health and sound dispossessing mind. She executed her last Will on 14.02.2001, revoking all her earlier Will. It is a Holograph Will and it reads like a Novel. After the preliminary decree, a family arrangement was arrived at and the suit was abandoned and no further step was taken for 23 years. 6. The fifth respondent/sixth defendant filed counter affidavit made the averments similar to that of the first respondent. 7. The learned Sub-Judge recorded the evidence on behalf of the petitioner and the respondents. The District Registrar, Virudhunagar, was examined as witness. While the Will No.2 of 2001, dated 15.12.2006, which was kept in a sealed cover produced by the District Registrar was sought to be marked through the District Registrar, Virudhunagar, the petitioner objected to the same on the ground that unprobated Will cannot be marked as per the provisions of Section 213 of Indian Succession Act. The respondents contended that as per Section 213(2) of the Indian Succession Act, the Will in question need not be probated or there is no necessity to obtain letter of administration and hence, there is no impediment for marking the document. 8. The learned counsel for the petitioner and the respondents relied on number of Judgments in support of their respective contentions. 9. The learned Judge has considered in detail all the materials on record and the Judgments, passed an elaborate order dated 12.12.2013, holding that the Will dated 15.12.2006, bearing Document No.2 of 2001, produced by the District Registrar, Virudhunagar, is admissible in evidence and can be marked. Against the said order, the petitioner has come forward with the present civil revision petition. 10. The learned counsel for the petitioner and the respondents 1, 2, 3 & 5 reiterated the averments made in the affidavit, grounds of revision and the counter affidavit. 11. In support of his submission, the learned counsel for the petitioner relied on the following Judgments:- (i) 1993 (2) SCC 507 [Chiranjilal Shrilal Goenka Vs. Jasjit Singh and Others (ii) AIR 1954 SC 280 [Ishwardeo Narain Singh Vs. Smt.Kamta Devi and Others] (iii) AIR 1962 SC 1471 [Mrs.Hem Nolini Judah Vs. Mrs.Isolyne Sarojsbashini Bose and Others] (iv) 2004 (7) SCC 505 [Commissioner, Jalandhar Division and Others Vs. Mohan Krishan Abrol and Another] (v) 2008 (4) SCC 300 [Krishna Kumar Birla Vs. Rajendra Singh Lodha and Others](vi) AIR 2010 PATNA 86 [Poonam Devi Vs. Smt.Kamta Devi and Others] (iii) AIR 1962 SC 1471 [Mrs.Hem Nolini Judah Vs. Mrs.Isolyne Sarojsbashini Bose and Others] (iv) 2004 (7) SCC 505 [Commissioner, Jalandhar Division and Others Vs. Mohan Krishan Abrol and Another] (v) 2008 (4) SCC 300 [Krishna Kumar Birla Vs. Rajendra Singh Lodha and Others](vi) AIR 2010 PATNA 86 [Poonam Devi Vs. Surendra Prasad and Others] (vii) AIR 2001 KERALA 184 [Cherichi Vs. Ittianam and Others] (viii) 1995 AIHC 4831 [Usha Subramaniam and Another Vs. Cor. Daljit Kumar Bhandari and Others] (ix) AIR 1992 Madhya Pradesh 224 [Ram Shankar Vs. Balakdas] (x) AIR 1971 Kerala 270 [G.Geevarghese Vs. Issahak George and Others] (xi) AIR 1950 Rajasthan 27 [Balkishan and another Vs. Prabhu and Others] (xii) AIR (29) 1942 Calcutta 401 [Jogendranath Banerjee Vs. Makhan Lal Banerjee and Others] (xiii) AIR 1916 Privy Council 202 [Meyappa Chetty Vs. Supramanian Chetty]. 12. In all these Judgments, it was held that as per Section 213 of the Indian Succession Act, an Executor or Legatee cannot establish right under an unprobated Will or without obtaining letter of administration as the case may be. 13. To substantiate his case, the learned counsel for the first respondent relied on the Judgement reported in AIR 2001 SC 1151 [Clarence Pais and Others Vs. Union of India]. 14. In support of his case, the learned counsel for the respondents 2, 3 & 5 relied on the following Judgments: (i) AIR 2008 SC 306 [Kanwarjit Singh Dhillon Vs. Hardyal Singh Dhillon and Others] (ii) 1996 (9) SCC 324 [Joyce Primrose Prestor Vs. Vera Marie Vas] (iii) AIR 2001 SC 1151 [Clarence Pais and Others Vs. Union of India] 15. Heard Mr.S.Palani Velayutham, learned counsel for the revision petitioner, Mr.M.Ashok Kumar, learned counsel for the first respondent and Mr.N.Rajachandrasekaran, learned counsel for the respondents 2, 3 & 5 16. I have carefully perused the materials on record, the Judgments relied on by the learned counsel for the petitioner and the learned counsel for the respondents and considered their arguments. Heard Mr.S.Palani Velayutham, learned counsel for the revision petitioner, Mr.M.Ashok Kumar, learned counsel for the first respondent and Mr.N.Rajachandrasekaran, learned counsel for the respondents 2, 3 & 5 16. I have carefully perused the materials on record, the Judgments relied on by the learned counsel for the petitioner and the learned counsel for the respondents and considered their arguments. I am not extracting the portions of Judgments relied on by the learned counsel for the petitioner and the learned counsel for the respondents and not giving any finding on the applicability on the same to the facts of the present case, as I am setting aside the order of the learned Sub-Judge, Tenkasi, on the ground that the learned Judge has passed an elaborate order almost deciding the issue in I.A.No.149 of 2007. 17. The elaborate order passed by the learned Sub-Judge, is contrary to the directions given by the Apex Court in the Judgment reported in 2001 (3) SCC 1 [Bipin Shantilal Panchal Vs. State of Gujarat and Another], wherein in paragraph Nos.14 and 15, it has been held as follows:- "14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.) 15. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses." 18. The Apex Court has categorically held that the trial Court has to record objection and tentatively mark the documents and decide such objections at the final stage in the Judgment and if the Court finds at the final stage that the objection so raised is sustainable, then such document can be excluded from consideration. 19. In view of the above Judgment of the Apex Court, the impugned order of the learned Sub-Judge, Tenkasi, dated 12.12.2013, is set aside. The learned Judge is directed to mark the Will, dated 15.12.2006, bearing Document No.2 of 2001, subject to objections of the petitioner and proceed with recording further evidence if any produced by the parties. Before passing final order, the objection of the petitioner has to be considered first as to whether the same is sustainable or not and based on the decision on the objection, the learned Sub-Judge, Tenkasi, is directed to pass final orders in I.A.No.149 of 2007 in O.S.No.31 of 1985. 20. With the above direction, this civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.