K R ANDU GOWDER Vs. AMMU AMMAL

JUDGEMENT

(1.) CRP. No:1135 of 2005 has been filed to strike off the suit taken on the file of the Subordinate Court, Ooty as the same is not maintainable in the eye of law.

(2.) THE brief facts of the case are as follows:- THE respondents herein are the legal heirs of the k. R. Raju, defendant in the earlier suit filed for partition in O. S. No:161 of 1984 filed by K. R. Andu Gowder, the revision petitioner, the first defendant in the present suit O. S. No. 99 of 2005 filed by the respondents herein. A preliminary decree was passed in the earlier suit favour of the plaintiff holding that he would be entitled for 1/4th share of the property. K. R. Raju gowder, brother of K. R. Andu Gowder filed A. S. No. 888 of 1985 before this Court against the said decree. He also filed O. S. No;80 of 1987 before the DMC, Ooty, which was later transferred to DMC, Kothagiri and renumbered as OS. No. 78 of 1996. A. S. No:888 of 1985 was dismissed on 9. 11. 2001. THEreafter, the O. S. No. 161 of 1984 was transferred and renumbered as OS. No. 46 of 1997 and the same is pending for final decree proceedings on the file of the DMC, Kothagiri. O. S. No:155 of 1986 was filed by K. R. Andu Gowder against his brother K. R. Raju gowder for partition and separate possession of his half share in the property and the said suit was dismissed after contest. An appeal was filed by him in a. S. No. 29 of 2000. During the pendency of the appeal, and while the matters stood thus, K. R. Raju died on 24. 3. 2002 leaving behind an unregistered Will dated 12. 2. 2002 bequeathing all his properties, movables and immovable in faovur of the respondents who are none other than the step mother and step brothers of the testator, since he was at logger heads with his brother k. R. Andu Gowder. Hence the respondents herein filed I. A. No:53 of 2003 under order 1 Rule 10 (2) CPC for impleading themselves as parties to the appeal in the place of deceased Mr. K. R. Raju Gowder who was the sole respondent. Aggrieved of the same, they filed CP. NO. 546 of 2003 before this Court and the same was dismissed on the ground that the Will was not probated. Against the same, slp. No. 21038 of 2005 was preferred to Supreme Court of India and interim stay was granted on 25. 10. 2005.

(3.) IT is the further contention of the learned counsel for the revision petitioner that being not the legal heirs of the deceased k. R. Raju Gowder, since the alleged Will is not probated so long they prove the same, they are not entitled to file the present suit. In the CRP. No:546 of 2003, this court held that the Will had not been produced before the Revenue authorities and that the alleged will is fabricated and forged and that the respondents cannot derive any interest through that will. IT is also held by this court that protection under Section 211 of the Indian Succession Act also cannot come to the rescue of the respondents. Further unprobated Will can be relied upon only for collateral purposes as has been held by this court in c. Rajendran Vs. M. Senthilkumar (2003 (1) LW 43 and Ganshamdoss Narayandoss V. Gulab Bi Bai (AIR 1927 Madras 1054 ). If the Will is not probated then the general rule of succession will have to be followed as has been decided by the apex Court in Hardev Singh V. Gurmeet Singh (2007 (2)CTC 78 ).