IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.09.2017 CORAM :
THE HONOURABLE MR. JUSTICE M. GOVINDARAJ CRP (NPD) NOS. 3511 & 3512 OF 2017 AND CMP.NO.16280 & 16281 OF 2017 Pappathi ... Petitioner in both CRPs'
Vs.
1. P.Tamilselvi
2. S.Chitra
3. C.Ramani
4. Vanaja
5. P.Ponmathi ... Respondents 1 to 5 in both CRPs'
PRAYER: Civil Revision Petitions filed under Article 227 of the Constitution of India, to set aside the order dated 24.07.2017 passed in Memo in O.S.No. 152 of 2012 on the file of Additional District Judge, Namakkal.
For Petitioner : Mr.S.Senthil For Respondents : Mr.P.Valliapppan COMMON ORDER These Civil Revision Petitions are directed against the order rejecting the memo filed by the petitioner / plaintiff.
2. The respondents / defendants sought to mark the Will dated 13.02.2009 said to have been executed by petitioner / plaintiff. When the plaintiff herself alive, the said document, namely, the Will does not worth a paper, as held by the Hon'ble Supreme Court in SURAJ LAMP INDUSTRIES(P) LTD. VS. STATE OF HARYANA AND
OTHER [2012 (1) SCC 656] and para 22 of the said judgment is extracted hereunder:
22. "A will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death.
b. It is not a transfer inter vivos. The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the lifetime of the testator. It is said that so long as the testator is alive, a will is not worth the paper on which it is written, as the testator can at any time revoke it. If the testator, who is not married, marries after making the will, by operation of law, the will stands revoked.
c. (See Sections 69 and 70 of the Succession Act, 1925.) Registration of a will does not make it any more effective.
3. The petitioner / plaintiff has filed a memo of objection that the Will cannot be marked as a document and her request has already been rejected by the Trial Court. The Trial Court has rejected the memo of objection filed by the plaintiff holding that by marking the Will, the rights of the petitioner / plaintiff will not be affected. It will noway prejudiced to the rights of the petitioner plaintiff and the petitioner / plaintiff will have ample opportunity to prove the forgery of the document at the time of trial.
4. In the considered opinion of this Court, such a finding of the Trial Court is erroneous. The Will which is sought to be marked does not even worth a paper, while the testator herself is alive. Therefore, the order passed by the Trial Court is liable to be set aside.
5. Accordingly, the impugned order dated 24.07.2017 passed in Memo in O.S.No.152 of 2012 by the learned Additional District Judge, Namakkal, is set aside and the Civil Revision Petitions are allowed. No costs. Consequently, connected miscellaneous petition are closed.
20.09.2017
Index : yes/no Internet : yes/no bsm/tk To The Additional District Judge, Namakkal.
M.GOVINDARAJ, J.
bsm/tk CRP (NPD) NOS. 3511 & 3512 OF 2017 20.09.2017