TR CMP(MD)/439/2026 of T.L.Harikrishnan Vs Sulochana on 5 November 2026

ORDER

This Transfer Civil Miscellaneous Petition is filed seeking for an order to withdraw the Testamentary Original Suit in Unnumbered T.O.S.No........ of 2026 (arising out of Probate O.P.No.1 of 2023) from the file of the learned Additional District Judge, Virudhunagar and to transfer the same to any other Court of competent jurisdiction and to dispose of the above Unnumbered T.O.S.No........ of 2026 within a specified time.

2. The learned counsel for the petitioner stated in his affidavit that the petitioner is the plaintiff in Unnumbered T.O.S.No. ......... of 2026 on the file of the Additional District Court, Virudhunagar. The petitioner originally filed Probate O.P.No.1 of 2023 in respect of a Will dated 27.09.2019 executed by one K.K.S.R.Rajagopal, who died on 06.02.2022. The petitioner has filed a memo on 18.07.2025 to convert the O.P.No.1 of 2023 into a Testamentary O.S., but the trial Judge has adjourned the same unnecessarily for several hearings. During pendency of that O.P., there were several other proceedings, so the petitioner preferred C.R.P(MD)No.1827 of 2026 to convert O.P.No.1 of 2023 into T.O.S. and, pending C.R.P.(MD)No.1827 of 2026, the trial Court converted the O.P.No.1 of 2023 as unnumbered T.O.S.No. …... of 2026. At this stage, the petitioner has moved this present petition to transfer the said proceeding from the Additional District Court, Virudhunagar, to any other competent Court.

3. The learned counsel for the petitioner as well as the learned counsel for the 3rd respondent have argued at length with regard to various litigations pending between the parties. The lengthy arguments need not be discussed, except for the facts relevant to this petition.

4. The learned counsel for the petitioner has submitted that the petitioner originally filed Probate O.P.No.160 of 2022 before the II Additional District Court, Trichy, against the respondents. The 3rd respondent filed O.S.No.29 of 2023 on the file of the Additional District Court, Virudhunagar, against the petitioner and others for partition and other reliefs. Thereafter, the petitioner filed Tr.C.M.P(MD) No.164 of 2023 for transfer of O.S.No.29 of 2023 to Trichy, whereas the

3rd respondent filed Tr.C.M.P(MD)No.165 of 2023 to transfer the Probate O.P.No.160 of 2022 from Trichy to Virudhunagar. As the Tr.C.M.P(MD)No.164 of 2023 was withdrawn, the Tr.C.M.P(MD) No.165 of 2023 was allowed on 28.04.2023 and the Probate O.P.No.160 of 2022 on the file of the II Additional District Court, Tiruchirappalli was transferred to the Additional District Court, Virudhungar and the same was renumbered as Probate O.P.No.1 of 2023. Thereafter, a few interlocutory applications were filed, and against the order passed therein, the aggrieved parties moved upto the Hon’ble Apex Court by way of SLP and the same was disposed of. Then, the Probate O.P. was ripe for adjudication. The respondents have strongly objected to the grant of probate, so the petitioner has filed a memo on 14.07.2025 before the Additional District Court, Virudhunagar to convert the Probate O.P.No.1 of 2023 as Testamentary Original Suit. But the learned trial Judge, without passing any order, adjourned the proceedings by recording that the petitioner’s counsel was absent. Since the trial Judge was not inclined to convert the Probate O.P. into a Testamentary Original Suit, the petitioner has filed C.R.P.(MD)No.1827 of 2026 before this Court and when the same was pending, the trial Judge has converted the Probate O.P.No.1 of 2023 as an unnumbered Testamentary O.S.No. ...… of 2026 on 29.07.2026. Still the trial Judge has not assigned any number and so the petitioner prayed this Court in C.R.P(MD)No.1827 of 2026 to transfer the unnumbered Testamentary O.S. But, this Court has passed an order in C.R.P(MD)No.1827 of 2026 dismissing the revision as infructuous, however it observed in paragraph No.4 that it is always open to the petitioner to work out his remedy in the manner known to law by filing an appropriate application and if any such application is filed the same shall be considered by the Court in accordance with law. Hence, the petitioner has filed this present petition to transfer the unnumbered Testamentary O.S....… of 2026 on the file of the Additional District Court, Virudhunagar to any other competent Court since the petitioner apprehends that the trial Court kept unnumbered T.O.S. without assigning number and also passing biased docket order against the petitioner and his counsel. The petitioner further apprehends that he will not get justice from the trial Court. The parties to the proceedings are from Chennai and Coimbatore and so, the unnumbered Testamentary O.S..… of 2026 and O.S.No.29 of 2023 on the file of the Additional Court may be transferred to Madurai.

5. In support of his arguments, the learned counsel for the petitioner has submitted a copy of 'B' Diary of the cases and also relied on the following rulings:

(1) (1998) 5 Supreme Court Cases 513 in the case of State of W.B. and Ors. /v/ Shivananda Pathak and Ors.

(2) (1987) 4 Supreme Court Cases 611 in the case of Ranjit Thakur /v/ Union of India and Ors.

(3) Order of the Madras High Court in C.R.P.(PD)No.4388 of 2024 dated 22.01.2025 in the case of Anila Shashikant Bhai Kothari /v/ Nipun Navnit Mehta.

6. The learned counsel for the contesting 3rd respondent submitted that the trial Judge wanted the petitioner to file an interlocutory petition instead of a memo, but the petitioner has not filed any petition. The 3rd respondent filed a reply memo. The petitioner has filed another I.A.No.13 of 2025 for the same prayer. The trial Judge has passed an order on the memo and sent the case bundle to the Principal District Judge, Virudhunagar, for assigning a number. The 3rd respondent has filed a typed set of papers and drew the attention of this Court to page numbers 62 and 72 of the typed set of papers to substantiate his submissions. The learned counsel for the 3rd respondent has submitted that the unnumbered Testamentary O.S.No….. of 2026 may be transferred to the Principal District Court, Virudhunagar and also sought transfer of O.S.No.29 of 2023 on the file of the Additional District Court, Virudhunagar, to the Principal District Court, Virudhunagar, as the main contesting parties are relatives, who are coming from various cities.

7. Upon the allegations levelled against the Presiding Officer, Additional District Court, Virudhunagar, a report has been called for and the same has been received.

8. The submissions of both sides were considered. The petitioner and the respondents are relatives. They made rival contentions in respect of the Will executed by Late K.K.S.R.Rajagopal, who died on 06.02.2022 and for partition of their family properties. The main contention of the petitioner is that he filed a memo on 14.07.2025 to convert the Probate O.P.No.1 of 2023 into a Testamentary Original Suit, but the same was kept idle for a long period, that too passing biased orders against the petitioner and his side counsel, though lastly it was converted as unnumbered Testamentary O.S. while pending C.R.P(MD)No.1827 of 2026 before this Court. So, a report was called for from the learned trial judge, who submitted the same.

9. On perusal of the report, the trial judge has stated that various litigations are filed and pending between the parties and has also recorded certain proceedings in the petition for non appearance of parties despite receipt of notice and also for setting aside petitions for exparte orders, there is no inordinate delay. The trial judge has specifically submitted that he has not made any reprimand upon any counsel who appeared before him and has not made any unwarranted remarks upon any counsel and has never acted partially against the petitioner and his counsel. However, the learned trial Judge has submitted that, without prejudice to his remarks, he has no objection in transferring the Testamentary O.S. from his file to any other Court.

10. On hearing both sides and on perusal of material records of this proceeding, it is very clear that the unnumbered Testamentary O.S.No.... …of 2026 has been sent to the Principal District Court, Virudhunagar for assigning a number. The contesting 3rd respondent has also stated that he has no objection to transfer the case to the Principal District Court, Virudhunagar. Both parties have also sought transfer of O.S.No.29 of 2023 from the file of the Additional District Court, Virudhunagar to the Principal District Court, Virudhunagar. However, as there are a number

of defendants in O.S.No.29 of 2023, it is not fair to transfer O.S.No.29 of 2023 without giving any opportunity to the defendants therein for hearing. Therefore, considering the above facts and circumstances and also considering the citations relied on by the petitioner's side, this Court is of the view that the petition is to be allowed and thereby, Testamentary O.S.No..…. of 2026 is to be ordered to be transferred from the Additional District Court, Virudhunagar to the file of the Principal District Court, Virudhunagar. The parties are at liberty to file a separate application for transfer of O.S.No.29 of 2023 on the file of the Additional District Court, Virudhunagar if they so desire.

11. In the result, this Transfer Civil Miscellaneous Petition is allowed. The Testamentary Original Suit in unnumbered T.O.S.No…..of 2026 (arising out of Probate O.P.No.1 of 2023) on the file of the Additional District Court, Virudhunagar, is hereby withdrawn and transferred to the file of the Principal District Court, Virudhunagar for disposal in accordance with law. As it is revealed that the said unnumbered Testamentary O.S. has been sent to the Principal District Court, Virudhunagar for assigning number, the same may be retained by the Principal District Court, Virudhunagar, if number is assigned otherwise, the learned Additional District Judge, Virudhunagar is directed to transmit the entire records pertaining to the case in unnumbered Testamentary O.S.No....... of 2026 (if numbered, the records of the case therein) to the transferee Court, within a period of two weeks from the date of receipt of a copy of this order. No costs. Consequently, the connected Civil Miscellaneous Petition is closed. 05.11.2026 NCC : Yes / No Index : Yes / No

Internet : Yes / No VSD To

1. The Additional District Court, Virudhunagar.

2. The Principal District Court, Virudhunagar

3. The Section Officer, Vernacular Section, Madurai Bench of Madras High Court, Madurai.

P.VADAMALAI, J. VSD Pre - Delivery Order made in TR CMP(MD) No. 439 of 2026 AND CMP(MD) No. 11468 of 2026 05.11.2026