Vasanthalakshmi v. T.M. Thangavelu

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 20.10.2016

CORAM:

THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN C.R.P. (PD) NO.3251 OF 2016 AND C.M.P.NO.16467 OF 2016 1.Vasanthalakshmi 2.Sarojini ... Petitioners Vs.

T.M.Thangavelu ... Respondent PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decreetal order dated 08.02.2016 in I.A.No.765 of 2015 in O.S.No.198 of 2010 on the file of Sub Court, Perundurai.

For Petitioners :

Mr.S.Kaithamalai Kumaran For Respondent :

Mr.V.S.Kesavan

O R D E R

The respondent filed a suit in O.S.No.198 of 2010 before the Subordinate Court, Perundurai, for partition. The respondent placed reliance on a will dated 15.11.2007.

2. The petitioners, on the other hand, contested the suit on the ground that the will was executed in their favour on 04.03.1998. According to the petitioners, in view of the will dated 04.03.1998, the respondent is not entitled to partition.

3. Before the Trial Court, the petitioners filed an application in I.A.No.765 of 2015 to examine the witnesses to the will executed in favour of the respondent. The application was dismissed by the Trial Court. The said order is under challenge in this Civil Revision Petition.

4. Heard the learned counsel for the petitioners and the learned counsel for respondent on caveat.

5. The petitioners placed reliance on the will dated 04.03.1998. The will was registered as document no.22 of 1998. The respondent, on the other hand, placed reliance on the will dated 25.11.2007.

6. The affidavit filed in support of the application in I.A.No.765 of 2015 indicates that the Trial Court has referred to the wills dated 04.03.1998 and 25.11.2007 for expert opinion and received the opinion of the handwriting expert.

7. The petitioners very strangely filed an application to summon the witnesses to the will dated 25.11.2007 and the scribe. The burden of proof to prove the will dated 25.11.2007 is clearly on the respondent. It is not as if the petitioners are expected to prove the negative. Since the respondent in his capacity as the plaintiff, placed reliance on the will dated 25.11.2007, the burden to prove is on him to prove the will. Such being the factual position, the petitioners were not justified in summoning the witnesses to the will dated 25.11.2007.

8. The learned Trial Judge, having found that it was only after the conclusion of the trial, the petitioners filed the interlocutory application, rightly dismissed the application. I do not find any error or illegality in the order passed by the learned Trial Judge warranting exercise of supervisory jurisdiction under Article 227 of the Constitution of India.

9. In the upshot, I dismiss the Civil Revision Petition. No costs. Consequently, connected civil miscellaneous petition is closed. 20.10.2016 Index : Yes/No Internet : Yes/No TK

K.K.SASIDHARAN, J.

TK To The Subordinate Court Perundurai.

C.R.P. (PD) NO.3251 OF 2016 20.10.2016