Allowed¶38

Smt.Akila Vijayakumar v. Smt.Saraswathy Bhuvarahan and 5 others

Madras HC11 Dec 2025A/4918/2025

Case brief

AI extract

What is this about?

condonation of delay; 122 days delay; set aside abatement; death of third defendant; legal representatives to be impleaded; testamentary original suit; probate of Will; TOS No.1 of 2018; Madras High Court; P. Dhanabal, J.; counter affidavit; forged Will allegation; settlement deed dated 10.01.2008; O.S.No.4120 of 2014; merits left to main petition.

What did the court decide?

Delay of 122 days in filing the petition to set aside the abatement (caused by the death of the third defendant in TOS No.1 of 2018) condoned; the application is allowed. ¶38

Smt.Akila Vijayakumar Vs Smt.Saraswathy Bhuvarahan and 5 others — Madras HC (2025) — LawSathi Research

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A.No.4918 of 2025 in TOS No.1 of 2018

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 11-12-2025

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CORAM

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THE HONOURABLE MR.JUSTICE P. DHANABAL

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A No. 4918 of 2025 in TOS No.1 of 2018

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Smt.Akila Vijayakumar W/o.Sri Vijayakumar No.1, Maharaja Surya Road, Alwarpet, Chennai-600018.

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Applicant(s)

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Smt.Saraswathy Bhuvarahan and 5 others

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W/o.Late Sri.Bhuvarahan New No.78, Old No.6A, Sriman Srinivasan Road, Venus Colony, Alwarpet, Chennai-600018.

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2.Uma Ravi

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W/o.Sri.Ravishankar Old No.94, 4th Street, Abiramapuram, Chennai-600018.

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3.Srisudha Gnanaprakasam W/o.Sri.Gnanaprakasam No.25/19, F.D.Moorthy Road, Kumbakonam-612001.

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4.S.Tamilselvam

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4 to 6 are the LRs of Deceased 3rd Defendant T.Srilatha, All residingat No.52B, 1st Cross Street, Brindavanam Saram Pos, Puducherry 605 013.

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5.T.Suiyakumar

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https://www.mhc.tn.gov.in/judis

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A.No.4918 of 2025 in TOS No.1 of 2018

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Puducherry

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6.T.Raakesh Puducherry

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Respondent(s)

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For Applicant :	Mr.N.L.Rajah
	Senior Counsel
	for Ms.Vidya Chetan
For R1 & R2 :	Mr.N.Duraikannan
For R3 & R4 :	Mr.A.V.Bharathi

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ORDER

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This application is filed by the applicant / plaintiff to condone the delay of 122 days in filing a petition to set aside the abatement caused due to the death of third defendant in TOS No.1 of 2018.

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According to the applicant, she is the plaintiff in the main suit. The suit is filed to probate the Will. During the pendency of the suit, the third defendant died on 31.10.2024. Despite best efforts to verify the address, the applicant could not obtain any authentic proof at that stage, but upon making personal and diligent enquiry and on basis of certain documentary evidence and credible information received from reliable sources, the applicant came to know the correct and present address of the legal representatives of the deceased third defendant. Therefore, there is a delay in taking steps to implead the legal heirs of the deceased third defendant.

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The petitioner also filed an application to set aside the abatement and also to bring the legal heirs of the deceased along with this application. Therefore, there is a delay of

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https://www.mhc.tn.gov.in/judis

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A.No.4918 of 2025 in TOS No.1 of 2018

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122 days in filing the application to set aside the abatement caused due to the death of

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the third defendant.

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The respondents filed counter affidavit objecting the reasons stated by

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the applicant and according to the respondents, the provisions quoted in the application is not correct, main original suit itself is not maintainable and there are no grounds to allow this application. Once the suit is abated, the cause of action does not survive. The suit itself is not maintainable, since the plaintiff's claim for probate is based on a forged and fabricated Will. The property in question was already disposed of by a valid registered settlement deed dated 10.01.2008 executed by the Testator during his lifetime and the said settlement deed was upheld by the competent Court in O.S.No.4120 of 2014 and therefore the Will now propounded is void and unenforceable. Therefore, the application is liable to be dismissed.

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Heard both side counsel.

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Considering the above said rival submissions made by the parties and considering the number of days delay and in order to give fair chance to the plaintiff to conduct the case and to meet the ends of justice, this application is to be allowed.

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The merits of the case can be decided in the main petition. Therefore, this Application is allowed.

11.12.2025 (1/3)

mtl

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https://www.mhc.tn.gov.in/judis

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A.No.4918 of 2025 in TOS No.1 of 2018