1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28.10.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION No.2046 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 1.G.Athavan 2.G.Kannan .. Petitioners(Defendants 1 & 4) Vs. 1.Neeranjana Devi 2.Minor D.Maheswari 3.Minor D.Jeyanaren (Minor 2 and 3 respondents are represented by their mother viz., Neeranjana Devi) 4.G.Ganesan 5.G.Prabhu 6.Malathy 7.Jancy Rani 8.Vijayalakshmi 9.Subhakar 10.Subitha .. Respondents(Plaintiffs 1 to 3 & defendants 2,3,5 to 9) Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decretal order dated 11.04.2011 passed in Interlocutory Application No.63 of 2011 in Original Suit No.16 of 2008 by the Sub Court, Virudhunagar. For Petitioners : Mr.N.Dilip Kumar ORDER The order dated 11.04.2011 passed in Interlocutory Application No.63 of 2011 in Original Suit No.16 of 2008 by the Sub Court, Virudhunagar is being challenged in the present Civil Revision Petition. 2. The respondents 1 to 3 herein as plaintiffs have instituted Original Suit No.16 of 2008 on the file of the Court below for the reliefs of partition and separate possession of their shares, wherein the present revision petitioners and other respondents have been shown as defendants. In Original Suit No.16 of 2008, both parties have let in evidence and the matter stands for hearing arguments. At this stage, the revision petitioners/defendants 1 and 4 as petitioners have come forward with the present petition in Interlocutory Application No.63 f 2011 so as to reopen the case on their side for the purpose of examining attesting witnesses of the will dated 19.08.1988. The Court below has dismissed the same simply by saying that the present petition has been filed without assigning proper reason. Against the dismissal order, the present Civil Revision Petition has been filed. 3. Considering the nature of the relief sought for in Original Suit No.16 of 2008 and the definite stand taken on the side of the defendants 1 https://hcservices.ecourts.gov.in/hcservices/ 2 and 4 and also the relief sought for in Interlocutory Application No.63 of 2011 and the order passed therein, notice need not be sent to the respondents and this Civil Revision Petition is disposed of on merits at the stage of admission. 4. The learned counsel appearing for the revision petitioners has sparingly contended that the suit properties are originally belonged to Govindaraj and Packialakshmi and the said Packialakshmi has executed a will dated 19.08.1988 in favour of the defendants 1, 3 and 4 with limited interest and the vested remainders should go to their legal heirs and during the course of evidence let in on the side of the defendants, the attesting witnesses found in the will dated 19.08.1988 have not been examined and during the course of arguments, on the side of the plaintiffs an argument has been advanced to the effect that for the purpose of proving the will dated 19.08.1988, attestors of the said will have not been examined on the side of the defendants and under the said circumstances the present petition has been filed, but the Court below without considering the stand taken on the side of the revision petitioners/defendants 1 and 4 has erroneously dismissed the petition and therefore the dismissal order passed by the Court below is liable to be interfered with. 5. As stated earlier, Original Suit No.16 of 2008 has been instituted for the reliefs of partition and separate possession, wherein the defendants 1, 3 and 4 have filed a lengthy written statement. In their written statement, it has been specifically averred to the effect that one of the original owners of the suit properties viz., Packialakshmi has voluntarily executed the will dated 19.08.1988 in favour of the defendants 1, 3 and 4 with limited interest and vested remainders should go to their legal heirs. Therefore the defence taken on the side of the defendants 1, 3 and 4 is based upon the will dated 19.08.1988. On the side of the contesting defendants, the will dated 19.08.1988 has been marked. But they have failed to examine the attesting witnesses found in the will dated 19.08.1988. It is an everlasting principle of law that a will cannot be admitted as evidence without examining one of the attestors. 6. The present petition has been filed so as to reopen Original Suit No.16 of 2008 on the side of the defendants for simple reason to the effect that the attestors of the will dated 19.08.1988 have to be examined on the side of the contesting defendants. The Court below has simply dismissed the same stating that no proper reason has been assigned in Interlocutory Application No.63 of 2011. 7. Considering the fact that the entire defence of the contesting defendants is based upon the will dated 19.08.1988 and also considering that no will can be admitted in evidence, unless one of its attestors has been examined, this Court is of the view that for the purpose of giving sufficient opportunity to the revision petitioners, the petition filed in Interlocutory Application No.63 of 2011 can be allowed on such terms as stated infra. 8. In fine, this Civil Revision Petition is allowed without costs at the stage of admission and the order passed in Interlocutory Application No.63 of 2011 in Original Suit No.16 of 2008 by the Sub Court, Virudhunagar is set aside and the Sub Court, Virudhunagar is directed to allow Interlocutory Application No.63 of 2011 on payment of cost of Rs.10,000/- https://hcservices.ecourts.gov.in/hcservices/ 3 to the plaintiffs by the revision petitioners on or before 21.11.2011. Failing which, the Sub Court, Virudhunagar is directed to proceed further. The Registry is directed to send a copy of this order forthwith to the file of the Court below. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar(CO) /True copy/ Sub Assistant Registrar(CS) To The Subordinate Judge, Virudhunagar. +1 CC to Mr.N.Dilipkumar, Advocate, SR.No.36827 smn C.R.P(PD)(MD)No.2046 of 2011 and M.P(MD)No.1 of 2011 28.10.2011 TR :02.11.2011 : 3p/3c https://hcservices.ecourts.gov.in/hcservices/