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2015 DIGILAW 3303 (MAD)

S. Sankarasubramanian v. S. Guhan

2015-10-08

P.DEVADAS S

body2015
ORDER : Since both revisions are connected in factual matrix, they were heard together and are being disposed of together 2. These revisions arose out of I.A.Nos. 76 and 77 of 2015 in I.A.No. 149 of 2007 in O.S.No.31 of 1985 on the file of the Principal Sub-Court, Tenkasi. This is a Will matter. It will give lot of controvercies. It has given controversies, because the genuineness of the Will is in issue, but this necessarily has to be set at rest by appreciation of evidence by the parties. 3. Originally, it started from a partition suit in O.S.No.31 of 1985. A preliminary decree was passed. Both sides and their mother Balammal were allotted shares. Final decree is yet to be passed. The matter went into rough weather, when Balammal passed away. Her son Sankarasubramanian (3rd defendant) filed I.A.No.149 of 2007 to pass a supplemental pre-liminary decree in view of the demise of their mother. His other brothers have become his rivals. Notable among them are Dr.K.Krishnaswamyh(Plaintiff) and Guhan (6th defendant). Guhan has become his rival. They wished to exhibhit Holographic Will stated to have been executed by Balammal while alive and which was deposited in the Registrar's Office. It is being enquired into in the main I.A.No. 149 of 2007. It has become part-heard. Plaintiff and sixth defendant put up combined attack against the third defendant in I.A.No.149 of 2007. The Will was produced by the District Registrar. Guhan also gave evidence as a respondent's side witness. The Will was permitted to be marked by the trial Court by its order, dated 12.12.2013. That has become the subject-matter of issue in C.R.P (MD)No.887 of 2014. 4. It is pertinent here to extract para Nos.18 and 19 of this Court's order dated 22.08.2014 in C.R.P (MD)No.997 of 2014, as it will help us to consider and digest the arguments of both sides. It runs as Under: ''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 Judgement and if the Court finds at the final stage that the objections so raised is sustainable, then such document can be excluded from consideration. 19. In view of the above Judgement of the Apex Court, the impugned order of the learned Sub-Judge, Tenkasi, dated12.12.2013, is set aside. 19. In view of the above Judgement of the Apex Court, the impugned order of the learned Sub-Judge, Tenkasi, dated12.12.2013, is set aside. The learned Judge is directed to mark the Will, dated15.12.2006, 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.'' 5. In the wake of the said order dated 22.08.2014 supra, Guhan(6th defendant) filed I.A.No.76 of 2016 to reopen his evidence in I.A.No.149 of 2007 and also filed I.A.No.77 of 2015 to recall him to mark the Holographic Will. It was opposed by the third defrednant who is the applicant in I.A.No.149 of 2007. In view of this Court's order, dated 22.08.2014, the trial Court overruled the objections and allowed the said I.As. As against that, now the said third defendant is before us. 6. The learned counsel for the revision petitioner would submit that trouble making Will has already been marked as Ex.A25 through the District Registrar. Again it cannot be marked. Evidence of Guhan was over long back. He has knowledge of the Will. So now it is too late to recall him. It is bothing but an attempt to fill up the lacunae. In this connection, the learned counsel for the revision Petitioner cited the following decisions: 1. Vadiraj Nagappa Vernekar(d) through Lrs. vs. Sharad Chand Prabhakar Gogate ((2009) 4 MLJ 288 (SC)) 2. K.K. Velusamy vs. N. Palanisamy ((2011-3-L.W.738) 3. Bagai Construction through its Proprietor Lalit Bagai vs. Gupta Building Material Store ((2013) 3 MLJ (SC)) 4. S. Ramasamy vs. Perumal and others (2014 (3) CTC 518) 7. The learned counsel for the respondents submits that the Will case is put up by the respondents, so, they have to prove it. The onus is upon them. Further, their further evidence becomes necessary in the light of the orders of this Court dated 22.08.2014. Even in the said order, scope for making the objection of the revision petitioners and consideration of the same is provided. The onus is upon them. Further, their further evidence becomes necessary in the light of the orders of this Court dated 22.08.2014. Even in the said order, scope for making the objection of the revision petitioners and consideration of the same is provided. Further, as against the order dated 22.08.2014, as on date, the revision Petitioners had not gone to the Hon'ble Supreme Court. The decisions cited are not applicable to the facts of this case. 8. Ihave anxiously considered the rival submissions, materials on record, the impugned order of the trial Court and the decisions cited by the learned counsel for the revision petitioners. 9. It would be better to remind ourselves para Nos. 18 and 19 of this Court's order in C.R.P.No.887 of 2014, dated 22.08.2014 which we have already extracted supra. 10. In the revision Petitioners I.A.No.149 of 2007, plaintiff Krishnaswamy and the 6th defendant Guhan and their mother Balammal's Holographic Will has been disputed by the revision petitioner. Suit is a matter of proving the Will. It is also lies on the head of Guhan and Krishnaswamy and also they will have to stand or fall on the Will. He who makes the allegation has to prove the allegation. If no evidence is let in, who will fail upon whom the burden of proof lies. So far as others, it is their botheration. It is their duty to establish the Will and remove the doubts. When Ex.A25 was marked through the District Registrar, Guhan was not examined as a witness. The District Registrar could not answer questions intending to test the veracity and genuineness of the Will. But Guhan is bound to answer. 11. The order of this Court in C.R.P (MD)No.887 of 2014 contains several directions directing the trial Court to mark the Will, permitted taking of evience. It has also given opportunity to the revision Petitioner to make his objections and the trial court is to consider this before passing final order. When Ex.A25 produced by the District Registrar, the revision Petitioner lost his such opportunity. Now he will have such opportunity. 12. In such circumstances, question of filling up the lacunae will pale into insignificance. It has also given opportunity to the revision Petitioner to make his objections and the trial court is to consider this before passing final order. When Ex.A25 produced by the District Registrar, the revision Petitioner lost his such opportunity. Now he will have such opportunity. 12. In such circumstances, question of filling up the lacunae will pale into insignificance. But if Guhan tries to fill up any lacunae, the learned counsel for the revision Petitioner/Sankarasubramanian is there to object and that apart, the Trial Court is also there to consider the admissibility and relevancy of the evidence to be adduced. The Trial Court has passed the impugned orders and in tune with the orders of this Court dated 22.08.2014. As against the said order, the revision petitioner herein not gone to the Hon'ble Supreme Court. 13. In the light of the above, the decisions cited by the learned counsel are not applicable to the present fact situation. The impugned orders does not suffers from perversity. The impugned orders are implementation of this Court's directions in C.R.P(MD)No.887 of 2014, dated 12.12.2013. As regards the merits of the matter, pronouncing upon the truth and genuineness and validity of the Will, we refrain ourselves from making any comments and we leave the same unoccupied to be decided by the trial Court. 14. In view of foregoings, these revisions fails and are dismissed. Consequently, connected Miscellaneous Petitions are dismissed. No costs.