The Court allowed a civil miscellaneous petition filed under Order XXIII Rule 1(A) CPC to transpose petitioners (originally respondents 2 and 3) as appellants 2 and 3 in the main appeal, noting the appellant's right to contest a Will.
Petition allowed; petitioners transposed as appellant Nos. 1 to 6 in the main appeal; No costs.
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CMP NO.21173 OF 2018 IN A.S.NO.1046 OF 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.07.2025
CORAM :
THE HONOURABLE MR. JUSTICE R. SAKTHIVEL
CMP NO.21173 OF 2018
IN
A.S.NO.1046 OF 2012
1.G.Govindan Nair (Died on 17.02.2018) 2.G.Selvaraj (Died) 3.G.Jayaprakash
4.Paruvathikutty W/o. Late G.Selvaraj 5.Sasidharan S/o. Late G.Selvaraj 6.Sathish ... Petitioners / S/o. Late G.Selvaraj Respondents 2 & 3 (Petitioners 4 to 6 are brought on record as Lrs' of the deceased P2 vide Court Order dated 10.06.2025 made in CMP Nos.9522, 9524, 9528 of 2024 in CMP No.21173 of 2018 in A.S.No.1046 of 2012
Versus
1.G.Vijayakumar ... Respondent / 1st Respondent
Page No.1 of 8
CMP NO.21173 OF 2018 IN A.S.NO.1046 OF 2012
2.The Regional Transport Authority O/o. The Regional Transport Appar Street, Venkatesan Colony, Pollachi. 3.Dhanalakshmi 4.U.Umamaheswari 5.G.Saroja
... Respondents / Respondents 4 to 7
PRAYER : Civil Miscellaneous Petition filed under Order XXIII Rule 1(A) of the Code of Civil Procedure, 1908 praying to transpose the petitioners herein as appellants 2 and 3 from respondents 2 and 3 in the above appeal.
For Petitioners : Mr.P.Dinesh Kumar For Respondent-1 : Mr.G.Vijayakumar (Party-in-Person) For Respondent-2 : Mr.B.Tamil Nidhi Additional Government Pleader For Respondent-3 : No appearance For Respondent-4 : Mr.P.Sathish Kumar for M/s.K.A.Vimal Kumar For Respondent-5 : Ms.R.Swathi for M/s.Adithya Shivakumar
ORDER
This is the petition filed by the petitioner under Order XXIII
Rule 1(A) of the 'Code of Civil Procedure, 1908' [hereinafter 'CPC']
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CMP NO.21173 OF 2018 IN A.S.NO.1046 OF 2012
praying to transpose the petitioner Nos.2 and 3 who are respondent Nos.2
and 3 in the main Appeal Suit to appellant Nos.2 and 3 in the main appeal.
2.Mr.P.Dinesh Kumar, learned Counsel for the petitioner;
Mr.G.Vijayakumar, Party-in-Person; Mr.B.Tamil Nidhi, learned Additional
Government Pleader for the respondent No.2 / Regional Transport Authority; Mr.P.Sathish Kumar, representing Mr.K.A.Vimal Kumar, learned Counsel on record for the respondent No.4; and Ms.Swathi, representing M/s.Aditya Shivakumar, learned Counsel on record for the respondent No.5 are before this Court. There is no representation for the
respondent No.3.
3.Heard on both sides.
4.This Court has perused the affidavit filed in support of this
Civil Miscellaneous Petition. The present petition is filed by the petitioners
under Order XXIII Rule 1(A) of CPC seeking to transpose the petitioner
Page No.3 of 8
CMP NO.21173 OF 2018 IN A.S.NO.1046 OF 2012
Nos.2 and 3, who are respondent Nos.2 and 3 in the main appeal, to
appellant Nos.2 and 3. To be noted, during the pendency of Civil Miscellaneous Petition, the second petitioner G.Selvaraj passed away, leaving behind petitioner Nos.4 to 6 as his legal heirs / legal representatives.
5.It is stated that the first appellant, G.Govindan Nair passed
away on February 17, 2018 and left a Will dated July 19, 2000. Hence, petitioner Nos.2 and 3, who are presently arrayed as respondent Nos.2 and 3 in the main appeal, seeks to transpose themselves as appellant Nos.2 and
3. During the pendency of this Civil Miscellaneous Petition, the second petitioner herein, namely G.Selvaraj passed away and his legal heirs / legal representatives are brought on record in this Civil Miscellaneous Petition
as petitioner Nos.4 to 6 vide Order of this Court dated June 10, 2025 made
in CMP Nos.9522, 9524 and 9528 of 2024.
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CMP NO.21173 OF 2018 IN A.S.NO.1046 OF 2012
6.Mr.G.Vijayakumar, Party-in-Person submits that the alleged
Will dated July 19, 2000 was falsely created with an intention to defeat his
rights in the Suit Properties as if the Testator shown in the Will has right to
the Suit Properties. He denies the execution, attestation and legal validity
of the said Will.
7.Learned Counsel for the petitioners submits that a finding
with regard to the Will was called for by this Court from the Trial Court
and the Trial Court, after examining the witnesses, sent the findings along
with depositions.
8.Mr.G.Vijayakumar, Party-in-Person submits that the Trial
Court, without proper appreciation of evidence, gave a finding. He request
the Court to raise his points while arguing the main matter.
9.In view of the facts and circumstances, this Court is of the
view that the first respondent is entitled to raise his contentions qua Will
and the findings recorded by the Trial Court.
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CMP NO.21173 OF 2018 IN A.S.NO.1046 OF 2012
10.Considering the nature of this Civil Miscellaneous Petition,
this Court does incline to allow the petition and the petitioners herein are
transposed as appellant Nos.1 to 6. It is made clear that this order is passed
without prejudice to the rights and contentions of the first respondent
(Party-in-Person). The first respondent (Party-in-Person) is entitled to put
forth all the grounds available at law qua the Will dated July 19, 2000 and
the findings given by the Trial Court during the course of his arguments.
11.With the above observations, this Civil Miscellaneous
Petition is allowed. No costs.
07.07.2025 Index : Yes/No Speaking Order : Yes/No Neutral Citation : Yes/No JRS/TK
Page No.6 of 8
CMP NO.21173 OF 2018 IN A.S.NO.1046 OF 2012
Page No.7 of 8
CMP NO.21173 OF 2018 IN A.S.NO.1046 OF 2012
R. SAKTHIVEL, J.
JRS/TK
CMP NO.21173 OF 2018 IN
A.S.NO.1046 OF 2012
07.07.2025
Page No.8 of 8
2 issues framed by the court
Whether petitioners should be transposed as appellants in the main appeal.
Whether the first respondent is entitled to raise contentions regarding the Will.
1 provisions across 1 enactments
G.Jayaprakash
G.Vijayakumar
R. SAKTHIVEL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
