Anjalai v. Murugan

ORDER This petition has been filed to set aside the order passed in I.A.No.336 of 2021 in O.S.No.54 of 2018 dated 09.11.2021 on the file of District Munsif cum Judicial Magistrate Court, Alankudi.

2.The petitioner is the plaintiff in O.S.No.54 of 2018 before the District Munsif cum judicial Magistrate Court, Alankudi. The suit has been filed for a declaration that the petitioner is the owner of the property by virtue of a oral partition deed (Muchalika-Pagappattial) dated 28.06.1979 between the petitioner's father and his siblings and that the petitioner's father had executed a Will dated 23.10.1987, which was also registered before the jurisdictional Sub Register Office.

3.The learned counsel for the petitioner/plaintiff fairly submits that the application was filed before the commencement of trial while recording the evidence of defendants. It is submitted that the petitioner has specifically pleaded in para 2 of the plaint that the execution of Will by the petitioner's father in favour of her on 23.10.1987. It is submitted that the aforesaid Will was not available at the time of filing of the suit before the District cum Judicial Magistrate Court, Alankudi. It is submitted that after the examination of plaintif's evidence, the Will was traced out and therefore, an application in I.A.No.336 of 2021 was filed, wherein it has been clearly stated that the Will was mixed up with the other documents and the same was traced out. It is submitted that the Trial Court has committed a grave error in dismissing the application by coming to the conclusion that the petitioner may not be entitled to claim rights over the property on the strength of the aforesaid Will as the petitioner has to establish his right over the property on the strength of the aforesaid Muchalika/Pagappattial dated 28.06.1979. It is submitted that no prejudice will be caused to the respondent in allowing the petition and accordingly, the present Civil Revision Petition is liable to be allowed.

4.On behalf of the respondent, the learned counsel for the respondent would submit that the order passed by the Trial Court is well reasoned and requires no interference. It is submitted that the petitioner cannot claim any right over the property on the strength of the Will dated 23.10.1987 and she has to establish the right on the strength of oral partition deed (Muchalika-Pagappattial) dated 28.06.1979. That apart, the Will has to be proved in the manner known to law.

5.Considered the argument advanced by the learned counsel for the petitioner and the learned counsel for the respondent.

6.The petitioner was entitled to introduce the Will as an exhibit. As a matter of fact, the petitioner has also pointed out the averments in O.S.No. 163 of 2015. The relevant portion of the averment reads as under:-

2.gpd;dpl;L buq;ifad; ghr;Rz;lhh; jhthr; brhj;J cl;gl mtUila brhj;Jf;fis thjpf;fF 23.101987-k; njjpapy; gjpthd Xh; capy; rhrdk; vGjp mr;brhj;Jf;fis thjpf;F ghj;jpag;gLj;jpdhh;. Mth; fle;j 20 tUlq;fSf;F Kd;g[ ,we;J tpl;lhh;. mJKjy; me;j capy; mKYf;F te;J thjp jhthr; brhj;jpd; gpuj;naf (fPnH brhy;yg;gLk; tpsf;fj;jpw;F cl;gl;L) chpikahsuhfp ,r;brhj;Jf;fspd; mDgtk; vLj;J ehsJ njjp Kjy;

mitfis

jdpj;j

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bra;J tUfpwhh;. ,r;brhj;Jf;fSf;fhd tUtha; Mtzq;fs; thjp bgaUf;F Kiwahf khw;wg;gl;L tpl;ld. mij vd;gpf;Fk; Kfkhf thjp bgahpyhd gl;lh gh]; g[j;jfk;> ,r;brhj;jpw;fhd thp brYj;jpa urPJfs; rpytw;iwa[k; tHf;nfhL jhf;fy; bra;fpwhh;.

7.However, the aforesaid Will could not be introduced as it was mixed up with other documents at the time of filing of the suit and therefore, could not be marked during recording of the plaintiff evidence. After conclusion of the plaintiff's evidence, the petitioner was able to trace out the same and thus, filed an application to reopen the evidence in I.A.No.336 of 2021. The conclusion order was passed by the Trial Court stating that the said Will will have no significance and the petitioner has to prove the case on the strength of the aforesaid oral partition deed dated 28.06.1979 may be partially true. The aforesaid observation is on merits of the case which is to be decided in O.S.No.54 of 2018.

8.In my view, the Court ought to have allowed the petitioner to mark the aforesaid Will as an exhibit on behalf of the plaintiff. The respondent can cross-examine the petitioner. It is needles to say, the respondent have all rights to raise their contentions at the time of trial. Accordingly, the impugned order passed by the District Munsif cum Judicial Magistrate Court, Alankudi, in I.A.No.336 of 2021 in O.S.No.54 of 2018, dated 09.11.2021, is set aside and the I.A.No.336 of 2021 dated 09.11.2021 deserves to be allowed. The District Munsif cum Judicial Magistrate Court, Alankudi, shall endeavour to dispose the suit in O.S.No.54 of 2018 as expeditiously as possible preferably within a period of 12 months from the date of receipt of a copy of this order.

9.With the above observation, this Civil Revision Petition is allowed. No costs. Consequently, the connected miscellaneous petition is closed.

30.03.2023 NCC : Yes/No Index : Yes/No Internet:Yes/No dss To

1.The District Munsif cum Judicial Magistrate Court, Alankudi.

2.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai. C.SARAVANAN,J. dss and CMP(MD)No.10925 of 2021

30.03.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 30.03.2023 CORAM THE HONOURABLE MR.JUSTICE C.SARAVANAN and CMP(MD)No.10925 of 2021 Anjalai ... Petitioner/Petitioner/Plaintiff Vs. 1.Murugan 2.Selvam ... Respondents/Respondents/Defendants PRAYER:- This Civil Revision Petition has been filed under Article 227 of the Constitution of India, to set aside the order passed in I.A.No.336 of 2021 in O.S.No.54 of 2018 dated 09.11.2021 on the file of District Munsif cum Judicial Magistrate Court, Alankudi. For petitioner : Mr.S.C.Herold Singh For Respondent No.1 : Mr.Sekar for M/S.P.Ganapathi Subramanian For R2 : No Appearance