1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28.11.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION No.2198 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 R.M.Muthu .. Petitioner/Petitioner/3rd Party/3rd Party Vs. 1.Kathiravan 2.Kumaran 3.Jothi Isathya 4.Angayarkanni 5.Kalaivan 6.Ramakrishnan .. Respondents Civil Revision Petition has been filed under Section 115 of the Code of Civil Procedure, 1908 against the fair and decretal order dated 21.09.2011 passed in Interlocutory Application No.379 of 2011 in Interlocutory Application No.1215 of 2009 in Original Suit No.245 of 2004 by the District Munsif Court, Sivagangai. For Petitioner : Mr.R.Vijayakumar ORDER Challenge in this Civil Revision Petition is to the order dated 21.09.2011 passed in Interlocutory Application No.379 of 2011 in Interlocutory Application No.1215 of 2009 in Original Suit No.245 of 2004 by the District Munsif Court, Sivagangai. 2. The respondents 1 to 4 herein as plaintiffs have instituted Original Suit No.245 of 2004 on the file of the Court below for the reliefs of partition and separate possession of their shares, wherein a preliminary decree has been passed and subsequently a petition in Interlocutory Application No.1215 of 2009 has been filed for passing final decree. During pendency of the same, the revision petitioner herein as petitioner has filed an application in Interlocutory Application No.1061 of 2010 under Order I, Rule 10(2) of the Code of Civil Procedure, 1908 praying to implead him in the final decree proceedings and the same is pending and the present petition has been filed in Interlocutory Application No.379 of 2011 so as to send for the will from the concerned Sub Registry. The Court below has dismissed the same. Against the dismissal order, the present Civil Revision Petition has been preferred. 3. Considering the nature of the relief sought for in Original Suit No.245 of 2004 and also considering that in Original Suit No.245 of 2004, a preliminary decree has been passed and the matter is pending for passing final decree in Interlocutory Application No.1215 https://hcservices.ecourts.gov.in/hcservices/ 2 of 2009 and also considering the nature of the reliefs sought for in Interlocutory Application No.1061 of 2010 as well as in Interlocutory Application No.379 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 petitioner has contended that the first defendant is one of the sharers and he sold his share in favour of the second defendant and second defendant has passed away after passing preliminary decree in Original Suit No.245 of 2004 and during her lifetime she has executed a will dated 06.01.2006 in favour of the revision petitioner and under the said circumstances for the purpose of working out the share of the revision petitioner as per the will dated 06.01.2006, Interlocutory Application No.1061 of 2010 has been filed and since the revision petitioner has not been able to produce death certificate of the second defendant, the Registration Authority has refused to give certified copy of the will dated 06.01.2006 and under the said circumstances the present petition has been filed so as to send for the same, but the Court below has dismissed the petition erroneously and therefore the order passed by the Court below is liable to be interfered with. 5. In fact this Court has perused the entire order passed by the Court below. In paragraph No.7 of the order, it has been specifically stated that the petitioner has failed to obtain a certificate from the concerned bank so as to prove the fact that the will in question has been pledged. The Court below has also observed that without setting aside the preliminary decree, the revision petitioner cannot file a petition in Interlocutory Application No.1061 of 2010. 6. It has already been stated that Interlocutory Application No.1061 of 2010 has been filed mainly on the ground that the second defendant has executed a will in favour of the petitioner therein on 06.01.2006. It is an admitted fact that the first defendant is one of the sharers and he executed a sale deed in favour of the second defendant. Since the first defendant is one of the sharers and he conveyed his interest in favour of the second defendant and since the second defendant is said to have executed a will dated 06.01.2006, the reasonings given by the Court below for dismissing the petition are totally incorrect. The revision petitioner can establish his right only by way of producing the will dated 06.01.2006 and further in Original Suit No.245 of 2004 already a preliminary decree has been passed. Considering that the revision petitioner has stepped into the shoes of the second defendant and in turn the second defendant has stepped into the shoes of the first defendant, the preliminary decree passed in Original Suit No.245 of 2004 need not be set aside. Therefore viewing from any angle, the order passed by the Court below is erroneous and the same is liable to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 3 7. In fine, this Civil Revision Petition is allowed without costs at the stage of admission and the order passed in Interlocutory Application No.379 of 2011 in Interlocutory Application No.1215 of 2009 in Original Suit No.245 of 2004 by the District Munsif Court, Sivagangai is set aside and the petition filed in Interlocutory Application No.379 of 2011 is allowed without costs. However the revision petitioner is directed to deposit a sum of Rs.1,000/- in Original Suit No.245 of 2004. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar(RTI) /True Copy/ Sub Assistant Registrar To The District Munsif Court, Sivagangai. C.R.P(NPD)(MD)No.2198 of 2011 and M.P(MD)No.1 of 2011 smn SMA/09/12/2011/2C/3P https://hcservices.ecourts.gov.in/hcservices/