R SOURIRAJAN Vs. DISTRICT REGISTRAR THANJAVUR

JUDGEMENT

(1.) THE petitioner challenges an order dated 8-1-1990 by which the 1st respondent has rejected the revision petition filed by the petitioner on the ground that the petitioner can challenge the will in a Civil suit by way of suit. THE petitioner earlier came up before this Court in W.P. 10403 of 1989 and this Court by order dated 7-8-1989 dismissed the petition in limine on the ground that the petitioner can invoke the revisional jurisdiction under S. 68 of the Registration Act, 1908. Subsequently, the petitioner moved the Authorities, but he was told that he can move a Court of Law.

(2.) THE short facts leading to the filing of the writ petition are: A will has been registered by the 3rd respondent under S. 41 of the Indian Registration Act, 1908. THE petitioner alleges that he is the only son of late Ramarathina Mudaliar who passed away on 28th March, 1985 in the Government Hospital, Nagapattinam and his father owned valuable, immovable properties. THE petitioner alleges that his father left himself as the only son and only heir to his properties. On coming to know of the fact, a notice was published in newspaper that the said deceased Ramarathina Mudaliar bequeathed his properties in favour of the 3rd respondent, the petitioner issued a notice through his counsel to the 3rd respondent. He also published a notification in the newspaper on 11-4-1985 that he is the only legal heir. According to the petitioner, the will is a fabricated document and on the said date of the will, the deceased father was in the village and was not keeping well. It is alleged that when the 3rd respondent applied for registration of the will before the 2nd respondent on 9-1-86 and notification was made on 11-7-1987, the petitioner filed objections before the 2nd respondent and the inquiry was adjourned from time to time and the attestors were examined in Chief on 15-2-1989 and the matter was posted for cross-examination. When nobody turned out, it was dismissed for non prosecution. However, the second respondent gave a notice stating that the evidence on the petitioner's side has been closed and the matter has been adjourned to 14-3-1989 for 3rd respondent's evidence. THE complaint of the petitioner is that without giving an opportunity to cross examine the witnesses of the 3rd respondent, the 2nd respondent closed the evidence in the case and passed an order on 23-3-1989 upholding the validity of the will and has granted the certificate of registration. Relying upon S. 33 of the Evidence Act that evidence given by a witness in a judicial proceeding or before any person authorised by law, will be relevant in all subsequent proceedings, the petitioner is before me. It is also stated that the 1st respondent has got a power under S. 68 of the Registration Act, 1908 and the power is very wide enough and the 1st respondent ought to have inquired into the irregularities committed by the 2nd respondent while deciding the will case 1 of 1986. It is also stated that the 2nd respondent has failed to see that the 3rd respondent who was a party in O.S. 93 of 1985 before the Sub Judge, Thanjavur, has remained ex parte and the plea made by him based on the alleged will has been rejected in the compromise decree dated 28-3-1989. THE petitioner alleges that the 1st and 2nd respondents ought to have relegated the 3rd respondent to work out his remedy in the Civil Court in the light of objections taken by the petitioner.

(3.) FROM the records, it is seen that the matter has been inquired into right from 23-5-1988 to 15-2-1989. On 1-3-1989, I find that an order has been made that the evidence on the side of the 3rd respondent is closed and the petitioner has been asked to produce the witness on 14-3-1989. On 14-3-89 the witness of the 3rd respondent did not appear and the counsel for the petitioner stated that he will appear on 17-3-1989. On 17-3-1989, D.Ws. 1 and 2 were examined and statements were recorded and the matter was adjourned for orders. On 20-3-1989, on the request of the petitioners counsel, the matter was adjourned to 22-3-1989. The petitioner's counsel did not appear on that day and the matter was adjourned to 23-3-1989 and the will was accepted for registration.