Inveighing the order dated 23.2.2007 passed in I.A.No.704 of 2006 in O.S.No.49 of 2004 by the District Munsif, Gobichettipalayam, this civil revision petition is focussed.
2. The epitome of the relevant facts, which are absolutely necessary and germane for the disposal of this civil revision petition, would run thus:-
The revision petitioner/plaintiff filed the suit O.S.No.49 of 2004 for partition, before the District Munsif Court, Gobichettipalayam, seeking the following reliefs:
VERANCULAR (TAMIL) PORTION DELETED It appears, at one point of time the suit was dismissed. As against which, appeal was filed and the matter was remitted back to the trial Court for being dealt with as per law. In the meanwhile, it appears, D1 died and her children were already on record. However, D1, during her life time itself in the written statement set out that she executed a 'Will' relating to the suit property in favour of R3 herein-the proposed defendant. After hearing both sides, the lower Court dismissed the application. Being disconcerted and aggrieved by the order of the lower Court, this civil revision petition is focussed by the plaintiff on various grounds inter alia thus:
the lower Court erroneously dismissed the application as though during the life time of D1 herself, the beneficiary under the 'Will' namely, R3-Venkatachalamoorthy, should have been added and such a proposition is antithetical to the well established legal principle.
3. Despite printing the name of the counsel for the respondents, no one appeared for the respondents.
4. The learned counsel for the revision petitioner/plaintiff, placing reliance on the grounds of revision, would develop his argument to the effect that in this case the delay was not five years, because the delay should not have been calculated from the date of filing of the suit, but it should have been calculated from the date of death of D1-the testatrix and the testatrix died only after remand of the matter by the appellate Court as set out supra. However, particulars were not given concerning the date of death of D1.
5. Be that as it may. Here in this case, in my considered opinion, no abatement of suit, is involved for the reason that even as on the date of death of D1, during the pendency of the suit, her children, who are the legal heirs, were on record. But the plaintiff wanted to add the proposed party-R3 herein, taking into consideration the fact that D1, during her life time alleged that she executed a 'Will' bequeathing the suit property in favour of R3. As such, R3 is a necessary party and the lower Court fell into error in observing as though evidence was adduced relating to the 'Will' and that impleadment of R3 is not necessary. I am at a loss to understand as to how the suit could be proceeded with relating to the genuineness or otherwise of the 'Will' without impleading the beneficiary under the 'Will'. Hence, I could see considerable force in the submission made by the learned counsel for the revision petitioner/plaintiff.
6. In the result, the impugned order dated 23.2.2007 passed by the District Munsif, Gobichettipalayam, is set aside by allowing this civil revision petition; consequently, the I.A.704 of 2006 in O.S.No.49 of 2004 is allowed. No costs. Connected miscellaneous petition is closed.
Msk To The District Munsif, Gobichettipalayam