High Court · 2025

A No. 2431 of 2025IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10-09-2025CORAMTHE HONOURABLE DR.JUSTICE R.N.MANJULAA No. 2431 of 2025ANDA NO. 2981 OF 2025,TOS NO. 23 OF 2003,TOS NO. 36 OF 2006,A NO. 2432 OF 20251. Abraham Samarendranath SarkarS/o.Late Amarendranath Sarkar, 1st West Main Road, Katpadi Township, Gandhinagar, Vellore 6. now residing at No.1/1, 4th Street, Thiruvengadam Nagar, Vellore 6.Applicant(s)Vs1. Sadhu A.N.Sarkar FoundationRep.by its Board of Trustee E.Nandakumar, S/o.Elumalai, No.247, Rajarathinam Nagar, 2nd Street, Kodungayur, Chennai 600 118.Respondent(s)A No. 2981 of 20251. Abraham samarendranath SirkarS/o.Late Amarendranath Sirkar, 1st West Main, Katpadi Township, Gandhinagar, Vellore 6. https://www.mhc.tn.gov.in/judis A No. 2431 of 2025Applicant(s)Vs1. Sadhu A.N.Sarkar FoundationRep.by its Board of Trustee, E.Nandakumar, S/o.Elumalai, No.247, Rajarathinam Nagar, 2nd Street, Kodungayur, Chennai 600 118.Respondent(s)TOS No. 23 of 20031. Sadhu A.N.Sircar FoundationApplicant(s)Vs1. Abraham Sama Resdiranath SircaRespondent(s)TOS No. 36 of 20061. A.N.Sarkar (decd)2.Sr.Sadham Hussain Alias RajsinApplicant(s)Vs1. Sadhu A.N.Sarkar FoundationRep By Its Board Of Trustee E.Nandakumar 247, Rajarathinam Nagar 2nd Street, Kodungaiyur, Chennai-118. https://www.mhc.tn.gov.in/judis A No. 2431 of 2025Respondent(s)A No. 2432 of 20251. Abraham Samarendranath SarkarS/o.Late Amarendranath Sarkar, 1st West Main Road, Katpadi Township, Gandhinagar, Vellore 6.Applicant(s)Vs1. Sadhu A.N.Sarkar FoundationRep.by its Board of Trustee E.Nandakumar, S/o.Elumalai, No.247, Rajarathinam Nagar, 2nd Street, Kodungayur, Chennai 600 118.Respondent(s)A No. 2431 of 2025PRAYERThis application is filed under Order XIV Rule 8 of Original side Rules read with section 151 of CPC praying to reopen the evidence on the side of the Plaintiff in T.O.S.No.36 of 2006.A No. 2981 of 2025PRAYERThis application is filed under Order XIV Rule 8 of Original side Rules read with section 151 of CPC praying to permit the Applicant to examine S.Jeevara, S/o.Savaria Pichai, residing at No.12/66, South Street, Agasteeswaram (vg) Kanyakumari District 629 701, one of the Attesting witnesses to the Will of Sadha A.N.Sircar dated 09/03/2002 by issue of Subpoena to procure his https://www.mhc.tn.gov.in/judis A No. 2431 of 2025attendance.A No. 2432 of 2025PRAYERThis application is filed under Order XIV Rule 8 of Original side Rules read with Order XVI Rule 1 of Original side Rules, praying to examine P.John, S/o.Late Ponnu Pillai, residing at 51/3, Keezha Kalkurichy, VTC Kalkulam, P.O.Thuckalay Kanyakumari District 629 175 as a witness on his side.IN all applications:For Applicant(s):M/S. T.M. HariharanFor Respondent(s):MR M.S Mani COMMON ORDERThese applications have been filed to reopen the evidence on the side of the plaintiff in TOS.No.36 of 2006 and to examine one P. John, S/o late Ponnu Pillai, residing at 51/3, Keezha Kalkurichy, VTC Kalkulam, P.O. P.O.Thuckalay Kanyakumari District 629 175, as a witness on his side, after issuing a subpoena to procure the attendance of one S. Jeevaraj, S/o Savaria Pichai, residing at No.12/66, South Street, Agasteeswaram (vg), Kanyakumari District 629 701, who is said to be one of the attesting witnesses to the will dated 09.03.2002.2.The learned counsel for the appellant submitted that out of the two attesting witnesses, one of the attesting witnesses is no more, and his son has https://www.mhc.tn.gov.in/judis A No. 2431 of 2025been examined as PW.2. The applicant is not aware whether the other attesting witness is alive or not. However, one witness by name, Jhon, is known to the other attesting witnesses, and hence, if the attendant of the attesting witness cannot be procured even after issuance of the subpoena, a summons may be issued to the witness by name, John.3.The learned counsel for the respondent stoutly objected to the application, stating that the plaintiff, having kept quiet for all these years, has come with these applications just in order to cause delay and hardship to the defendant. The will has not been marked as a document, and hence there is no question of proving the same by reopening the evidence which has already been closed.4.It is learnt that the recording of evidence has not yet been over and it is still pending, though the plaintiff's evidence has been closed. Even according to the applicant, he is not aware of the status of other attesting witnesses by name S. Jeevaraj. The respondent is right in his objection that the plaintiff ought to have taken steps even before the plaintiff's evidence was closed. So the plaintiff is aware that the burden to prove the genuineness of the will is lying on his shoulder, and he ought to have examined all the witnesses relevant for that purpose. 5.Despite the applicant has the knowledge that there is one more attesting witness, he has not taken any efforts to bring his attendance. He had chosen to close his evidence and now he has filed all these applications to reopen his https://www.mhc.tn.gov.in/judis A No. 2431 of 2025evidence. However, the recording of evidence has not yet been over, and in the interest of justice, I feel these petitions can be allowed for the purpose of securing the best evidence for the purpose of effective disposal of the suit, but on the condition that the applicant should pay a cost of Rs.3,000/- to the respondent for the delay and hardship caused to him.6.In the result, these applications are allowed and the subpoena is ordered to be issued to procure the attesting witness by name S. Jeevaraj, S/o. Savaria Pichai, residing at No. 12/66, South Street, Agasteeswaram (vg), Kanyakumari District 629 701, who is said to be one of the attesting witnesses to the will dated 09.03.2002. If the attesting witness appears, there need not be any necessity to examine the other witness by name P. Jhon, even if the summons is served on him. 8. The parties are required to appear before the Additional Master-II, on 24.092025. Cost, odered above has been paid and the same is also recorded.10-09-2025jrsIndex:Yes/NoSpeaking/Non-speaking orderInternet:YesNeutral Citation:Yes/No https://www.mhc.tn.gov.in/judis A No. 2431 of 2025A No. 2431 of 2025To1.Sadhu A.N.Sarkar FoundationRep.by its Board of Trustee E.Nandakumar, S/o.Elumalai, No.247, Rajarathinam Nagar, 2nd Street, Kodungayur, Chennai 600 118.A No. 2981 of 2025To1.Sadhu A.N.Sarkar FoundationRep.by its Board of Trustee, E.Nandakumar, S/o.Elumalai, No.247, Rajarathinam Nagar, 2nd Street, Kodungayur, Chennai 600 118.TOS No. 23 of 2003To1.Abraham Sama Resdiranath SircaTOS No. 36 of 2006 & A No. 2432 of 2025To1.Sadhu A.N.Sarkar FoundationRep By Its Board Of Trustee E.Nandakumar 247, Rajarathinam Nagar 2nd Street, Kodungaiyur, Chennai-118. https://www.mhc.tn.gov.in/judis A No. 2431 of 2025 https://www.mhc.tn.gov.in/judis A No. 2431 of 2025R.N.MANJULA J.jrsA No. 2431 of 2025AND A NO. 2981 OF 2025,TOS NO. 23 OF 2003,TOS NO. 36 OF 2006,A NO. 2432 OF 202510-09-2025