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(Memorandum of Civil Miscellaneous Appeal

Under Section 299 of the Indian Succession Act, 1925 r/w. Order
XLI of Code of Civil Procedure, 1908)

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(Civil Appellate Jurisdiction)

C.M.A.No. of 2023

Against

Probate O.P. 220 of 2022

(On the file of the Principal District Court, Tiruvallur)

1.Vinaayak Kannan @ Ganesh Vaitheeswaran (23 years)

2.K.Aravind @ Kumaresh (23 years)
both residing at
No.7, Dr.Ramasamy Street,
Vijaylakshmi Puram,
Ambattur, Chennai-600053. …Appellants

VS.

Nil … Respondent

On appeal from the judgment and decree dated

20/12/2022 in Probate O.P.220 of 2022 on the file of
Principal District Court, Tiruvallur

1.Vinaayak Kannan @ Ganesh Vaitheeswaran (23 years)

2.K.Aravind @ Kumaresh (23 years)
both residing at
No.7, Dr.Ramasamy Street,
Vijaylakshmi Puram,
Ambattur, Chennai-600053. …Appellants

VS.

Nil … Respondent
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MEMORANDUM OF GROUNDS OF APPEAL

UNDER SECTION 299 OF THE INDIAN SUCCESSION ACT, 1925
R/W. ORDER XLI OF THE CODE OF CIVIL PROCEDURE, 1908

The Appellants beg to submit as follows: -

1) The appellants are 1) Vinaayak Kannan @ Ganesh

Vaitheeswaran, Hindu, aged 23 years and 2) K.Aravind @

Kumaresh, Hindu, aged 23 years, both being sons of Mr.Kannan,

and residing at No.7, Dr.Ramasamy Street, Vijayalakshmi Puram,

Ambattur , Chennai - 600053.

The address for service of the appellants is that of their counsel

M/s. Manoj Sreevalsan, J.Chandrasekar, J.Rajasekar, S.Oveya,

K.Karthikeyan & R.Kritya having law chamber at No.199, Law

Chambers, High Court, Chennai-104 and office at National Insurance

Building, Third floor Room No.6, No.224 N.S.C. Bose Road, Chennai

– 600001. Email:manojsreevalsan@gmail.com and Mobile No.

9444961944.

2) Facts of the case:

Case of the Appellants:

The case of the appellants is that, the deceased Pichaimani is the

maternal grand uncle of the appellants/petitioners. The above said

Pichaimani died intestate on 03.05.2021 issueless and his wife

Meenatchi predeceased him issueless on 14.09.2003. Late

Pichaimani, while he was in sound disposing state of mind and body,

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executed a registered Will dated 11.09.2018 vide Document No.

84/2018 at the office of the Sub-registrar, Ambattur wherein he

bequeathed his movable and immovable properties to his elder sister

Saroja's grandchildren i.e., Appellants/petitioners herein. The

deceased Pichaimani was having absolute right and title in respect of

4805 sq. ft. only in Part of Plot No.10 and full extent of Plot No.11.

But, due to inadvertence, while he was executing the Will, the testator

has wrongly mentioned the full extent of Plot No.10 i.e., instead of

4805 sq. ft. he wrongly mentioned as 7200 square feet. In the entire

extent of 9280 sq. ft. in respect of Plot Nos.9, 10 and 11, already a

portion of property measuring an extent of 4475 sq. ft. was sold to one

Jayalakshmiammal on 28.02.1976 vide Document No.416/1976.

Hence, the appellants/petitioners are entitled to 4805 sq.ft. only. The

appellants/petitioners being legatees of the said Will dated

11.09.2018 executed by deceased Pichaimani, filed Probate

O.P.No.220 of 2023 before the Learned Principal District Judge,

Tiruvallur under Sections 276, 278, 281, and 284 of Indian

Succession Act, 1925 seeking for probate of the said Will. Paper

Publication and General Publication were effected and there were no

objectors.

3) On the side of the Appellants/Petitioners, the 1 st petitioner was

examined as PW1 and 2nd petitioner was examined as PW2 and the
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attestors of the Will namely Mr.Kalyanasundaram and Mr.S.Baskar

were examined as PW3 and PW4 respectively and Exs.P1 to P16

were marked.

4) The Learned Principal District Judge, Tiruvallur by order dated

20/12/2022 passed in Probate O.P.No.220 of 2022 dismissed the

petition filed under Sections 276, 278, 281, and 284 of Indian

Succession Act, 1925 to probate the Will.

The Appellants above named hereby prefer this Memorandum of

Grounds of Civil Miscellaneous Appeal against the Fair Order and

Decreetal order dated 20/12/2022 in Probate O.P.No.220 of 2022

passed by the Learned Principal District Judge, Tiruvallur for the

following among other: -

GROUNDS

a. The judgment of the trial court is against law, weight of the

evidence and probabilities of the case.

b. The learned Trial Judge failed to consider the petition on the

merits, ignoring the fact that the appellants are entitled to grant

of probate.

c. The learned Trial Judge failed to consider that the Will dated

11.09.2018 executed in presences of two attesting witnesses

and also duly registered at the Office of the Sub-Registrar,

Ambattur.
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d. The Learned Trial Judge despite holding that a Probate Court is

not required to consider the title of the testator erroneously

went into the title / extent of ownership and held that it was a

suspicious circumstance. This finding of the learned Trial Judge

is erroneous in law as the ‘suspicious circumstances

surrounding a Will’ refers to the testator’s mental capacity,

voluntariness and absence of any coercion, fraud or

misrepresentation.

e. The learned Trial Judge failed to appreciate that the two

attesting witnesses have been examined as PW-3 & 4 and both

these attesting witnesses have clearly narrated the sequence of

events leading to the execution of the Will by the testator and

also its registration at the Office of the Sub-Registrar.

f. The learned Trial Judge failed to appreciate that the Will having

been registered, a presumption arises that the said Public

Authority has duly performed his duty cast by law.

g. The learned Trial Judge has erroneously traversed into the

contents of the Will and culled out non-existing suspicious

circumstances and held that the same were not properly

dispelled by the appellants.

h. The Appellants crave leave of this Hon’ble Court to raise

additional grounds at the time of the hearing of appeal.

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The appellants therefore pray that this Hon’ble Court may be

pleased to set aside the Fair Order and Decreetal order dated

20/12/2022 in Probate O.P.No.220 of 2022 passed by the Principal

District Judge, Tiruvallur and thus render justice.

Dated at Chennai this the 25th day of May, 2023.

Counsel for Appellants

MEMO OF VALUATION

Value of O.P. - Incapable of Valuation

Court fee paid - Rs.100/-

Value of C.M.A - Incapable of Valuation

Court Fee paid thereon - Rs.100/-

U/s Sec 41 (1) of T.N.C.F.&S.V.Act

Dated at Chennai this the 25th day of May, 2023.

Counsel for Appellants

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IN THE HIGH COURT OF

JUDICATURE AT MADRAS
(Civil Appellate Jurisdiction)

C.M.A.No. of 2023

Against

Probate O.P. 220 of 2022

(On the file of the Principal
District Court, Tiruvallur)

1.Vinaayak Kannan
2.K.Aravind …Appellants

VS

Nil ...Respondent

MEMORANDUM OF
GROUNDS OF APPEAL

M/s MANOJ SREEVALSAN(841/94)

J.CHANDRASEKAR (668/13)
J.RAJASEKAR (445/18)
S.OVEYA (609/21)
K.KARTHIKEYAN (4211/22)
R.KRITYA (6532/2022)

COUNSEL FOR APPELLANTS

(9444961944)