Application to transfer a civil suit for partition to the High Court dismissed as transfer not required, since probate determines Will genuineness without adjudicating partition rights.
Application to withdraw and transfer O.S.No.7093 of 2019 to this Court dismissed.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
(TESTAMENTARY AND INTESTATE JURISDICTION)
MONDAY, THE 28TH DAY OF MARCH 2022
THE HON'BLE MR.JUSTICE P.VELMURUGAN
A.No.995 of 2021 in O.P.No.163 of 2020
In the matter of Indian Succession Act, 1925 and In the matter of Last Will and Testament of Late K.Ramaswamy Dated 2.7.2003 died on 30.08.2009.
Mr.R.Kesavanathan S/o. Mr.Late. K.Ramaswamy No.26/22, Perumal Koil Street, Mettupalayam, West Mambalam, Chennai – 33. .....Applicant/Petitioner
Vs
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A.No.995 of 2021:
Application praying that this Hon'ble Court be pleased to pass an order to withdraw and transfer O.S.No.7093 of 2019 pending on the file of the VII Additional City Civil Court, Chennai, to this Hon'ble High Court and try the same along with O.P.No.163 of 2020.
This Application coming on this day before this court for hearing, the
court made the following order:-
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This application has been filed by the applicant/petitioner to
withdraw and transfer O.S.No.7093 of 2019, which is pending on the file of
the VII Additional City Civil Court, Chennai to this Court to try along with the present O.P.No.163 of 2020, pending on the file of this Court.
written statement in C.S.No.441 of 2011 has been filed in the year 2012
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itself. The defendants have stated about the existence of the Will. But, till
filing of this Original Petition in the year 2019, they have not taken any
steps to probate the Will. They have filed the original petition in the year 2019 and the same was taken on file in the year 2020 and now it is pending as O.P.No.163 of 2020 before this Court. Therefore, pending O.P is nothing to do with the suit for partition. However, the suit has been filed even prior to the filing of the present O.P. Therefore, under these circumstances, no conflict of decisions would arise, since the suit in O.S.No.7093 of 2019 is the suit for partition and O.P.No.163 of 2020 is only for probate of the Will, dated 02.07.2013. The learned counsel for the applicant has also admitted that the knowledge of the existence of the Will came to known even at the time of filing the written statement in the year 2012 itself in C.S.No.441 of 2011. Therefore, under these circumstances, this Court is not inclined to encourage this type of application. However, the parties in the suit are at liberty to proceed the case in accordance with law before the VII Additional City Civil Court, Chennai and the O.P.No.163 of 2020 for probate could be dealt with in the manner known to law before this Court. Since the scope of probate is only to find out the genuineness of the Will, not to adjudicate the rights of the parties in the suit and hence the transfer of O.S does not arise. Hence, this application is dismissed.
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Private notice is also permitted.
Sd./-NSSJ.
18/02/2022 //Certified to be true copy// Dated at Madras this the day of 2022.
COURT OFFICER(O.S.)
From 25th Day of September 2008 the Registry is issuing certified copies of the Orders/Judgments/Decrees in this format.
EVK 01/04/2022
1 issue framed by the court
Whether a suit for pending transfer to the High Court is warranted when there is no conflict between the suit for partition and the original petition for probate.
R. Kesavanathan
Usha
B. Seetha
S. Bhuvaneswari
Lakshmi Priya
Madhumathi
P. Velmurugan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
