M.Arachelvan v. M.Chezhieyan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(TESTAMENTARY AND INTESTATE JURISDICTION) WEDNESDAY, THE 22nd DAY OF JUNE 2016 THE HON'BLE MR.JUSTICE M.M.SUNDRESH A.NO.1501 OF 2016 IN OP.NO.68 OF 2001 In the matter of the Indian Succession Act XXXIX of 1925 and In the matter of the Last will and Testament of Mrs.Sathiyavani Muthu.
Chezhieyan S/o.Lt.M.S.Muthu A-82,III Avenue Anna Nagar Chennai 600 102.
....PETITIONER -Vs1.M.Arachelvan S/o.Late M.S.Muthu No.12,Big Street Kilpauk Garden Colony Chennai 600 010 2.R.Chitramughi W/o.Late Ravana Doss A-83,III Street Anna Nagar Chennai 600 102 3.S.Maragathamani W/o.V.M.Sai Krishnan AH-74,7th Main Road Anna Nagar
Chennai 600 040 ....
Respondents A.NO.1501 OF 2016 M.Arachelvan S/o.Late M.S.Muthu No.12,Big Street Kilpauk Garden Colony Chennai 600 010 ...Applicant/1st Respondent -Vs1.Chezhieyan S/o.Lt.M.S.Muthu A-82,III Avenue Anna Nagar Chennai 600 102.
...1st Respondent/Petitioner 2.R.Chitramughi W/o.Late Ravana Doss A-83,III Street Anna Nagar Chennai 600 102 3.S.Maragathamani W/o.V.M.Sai Krishnan AH-74,7th Main Road Anna Nagar Chennai 600 040 ...2nd & 3rd Respondent/2nd & 3rd Respondent This Application praying that this Hon'ble Court be pleased to revoke the probate order dated 07.11.2001 made in O.P.No.68 of 2001 probating the will dated 03.03.1994. This Application coming on this day before this court for hearing the court made the following order: The applicant, who is the son of the testatrix, has
come forward with this application to set aside the probate order dated 07.11.2001 made in O.P.No.68 of 2001. 2.It appears that the applicant has filed a suit in C.S.No.1309 of 1988 against his own mother and probate petitioner. Pending the suit, a compromise has been entered into between the parties, pursuant to which, all the properties including the property which is the subject matter of the present proceedings, were divided among themselves and the same was reduced into writing. Accordingly, a decree was passed on 25.10.1988. 3.As per the said compromise decree, the mother of the applicant was entitled to get life estate interest in respect of the property, which is the subject matter of the probate petition and thereafter, title would pass on to the probate petitioner. The mother of the applicant got the property registered by the Tamil Nadu Housing Board on 03.10.1990. Thereafter, she executed a registered Will and she died on 11.11.1999.
4.Seeking to probate the Will of the deceased mother, the petitioner has filed OP.No.68/2001.
5.In the said petition, the parties have been examined. The applicant herein and his sister have filed their consent affidavits. The sister of the petitioner was also examined, who inturn stated that she has no objection in ordering the petition in favour of the petitioner. Accordingly, the petition was ordered on 7.11.2001. 6.Now, the applicant, who is the first respondent in O.P.No.68/2001, has come forward with this application interalia alleging that fraud has been committed. The learned counsel for the applicant submits that the consent affidavit said to have been given by the applicant, is not true and genuine one. Therefore, the order passed on 07.11.2001 requires re-consideration.
7.The learned counsel appearing for the first respondent/petitioner in O.P. No.68/2001 submits that even as per the statement made by the applicant in the suit in C.S.No.576/2000, the consent affidavit was obtained on an understanding that the liability of the applicant would be discharged. Thus, there is no dispute on the factum of execution of the consent affidavit by the applicant. Learned counsel further submits that though the said
averment would indicate that the applicant was aware of the probate order, no steps have been taken by the applicant till the filing of the present application in 2016. Hence, this application will have to be dismissed.
8.In reply, the learned counsel for the applicant submits that other respondent viz., sister of the parties will have to be served to know the exact truth. 9.I have considered the submissions made on either side.
10.The facts narrated above are not in serious dispute.
11.The applicant indeed is the party to the probate proceedings. Even as per the averment made in the subsequent suit viz., CS.No.576/2000, the applicant has stated that he gave the consent affidavit. The contention sought to be raised therein that there was a tacit understanding between the parties to discharge the liability of the applicant, has got no relevancy to the probate proceedings, which was concluded way back in the year 2001. Further, the applicant has not taken any steps,
though he was aware of the probate proceedings. 12.The matter can be looked into at different angle. The subject matter of the Will is the property, which was forming part of CS.No.1309/1988, in which, a consent decree was passed on 25.10.1988. As per the consent decree, the property has to go to the probate petitioner. The said consent decree is not in dispute, as the applicant himself has given his consent in writing and thus, the decree binds him.
13.Viewing from any angle, this Court finds no merits in this application. Accordingly, the application is dismissed.
sd/.M.M.S.J 22.06.2016 //Certified to be a true copy// Dated this the day of 2016 S.s/20.07.2016 COURT OFFICER From 25.09.2008 the Registry is issuing certified copies of the Order/Judgment Decree in this format.