IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 29TH SEPTEMBER 2011 / 7TH ASWINA 1933 OP(C).No. 2402 of 2011(O) ------------------------------------ IA.2159/2009 IN OS.1033/2009 of II ADDL.SUB COURT,THRISSUR .................... PETITIONER (S): -------------------------- 1. DEVI, D/O.LATE MACHINGAL KOCHAMMINI @ KUNJIKAVAMMA, THRISSUR VILLAGE, CHIRAKKAL DESOM, RESIDING AT RADHI VIHAR, AYYANTHOLE VILLAGE AND DESOM, THRISSUR TALUK. 2. KRISHNAKUMARI, D/O.LATE MACHINGAL KOCHAMMINI @ KUNJIKAVAMMA, THRISSUR VILLAGE, CHIRAKKAL DESOM, RESIDING AT RADHI VIHAR, AYYANTHOLE VILLAGE AND DESOM, THRISSUR TALUK. BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE BY ADVS. SRI.S.SUJIN SMT.NITA.N.S. RESPONDENT(S): ------------------------ 1. VIJAYALAKSHMI, D/O.LATE MACHINGAL KOCHAMMINI @ KUNJIKAVAMMA, THRISSUR VILLAGE, CHIRAKKAL DESOM, RESIDING AT MACHINGAL HOUSE, KOTTAPPURAM, NO.36/1718, THRISSUR VILLAGE AND TALUK- 680 584. 2. RAJALAKSHMI, W/O.LATE MACHINGAL RAMACHANDRAN, RESIDING AT PANJIYATH NARAYANI NILAYAM, MULLANKARA DESOM, AMMADAM, THRISSUR TALUK- 680 563. 3. SREELAKSHMI, D/O.LATE MACHINGAL RAMACHANDRAN, RESIDING AT PANJIYATH NARAYANI NILAYAM, MULLANKARA DESOM, AMMADAM, THRISSUR TALUK – 680 563 4. PRIYANKA, D/O.LATE MACHINGAL RAMACHANDRAN, RESIDING AT PANJIYATH NARAYANI NILAYAM, MULLANKARA DESOM, AMMADAM, THRISSUR TALUK – 680 563. R1 TO R4 BY ADV. SRI.G.SREEKUMAR (CHELUR), SRI.K.RAVI (PARIYARATH). THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OP(C) NO.2402/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OP. 1033/2009 ON THE FILE OF THE II ND ADDL. SUB COURT, THRISSUR, FILED BY THE PETITIONER. P2:- COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS/ DEFENDANTS IN EXT.P1 SUIT. P3:- COPY OF THE APPLICATION FILED BY THE PETITIONERS AS IA NO.2159/2009 IN EXT. P1 SUIT. P4:- COPY OF THE ORDER DTD. 15.6.2011 IN IA. 2159/2009 PASSED BY THE II ND ADDL.SUB COURT, THRISSUR. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2402 of 2011 -------------------------------------- Dated this the 29th day of September, 2011. JUDGMENT Plaintiffs in O.S.No.1033 of 2009 of the court of learned II Additional Sub Judge, Thrissur are the petitioners challenging Ext.P4, order refusing to send the disputed Will to the expert for opinion. According to the petitioners, themselves and respondents are the legal representatives of the late Kunjikkavamma to whom the suit property originally belonged. After the death of Kunjikkavamma petitioners sought partition of the property. Respondents resisted the suit on the strength of a Will (allegedly) executed by the said Kunjikkavamma in the year, 2009. Petitioners denied the due execution of that Will. They filed Ext.P3, application to send the said Will for expert opinion. Learned Sub Judge dismissed that application by Ext.P4, order observing that it is for the respondents/defendants as the propounders of the Will to prove the same as required under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. That order is under challenge. 2. Learned counsel for petitioners contend that petitioners will be put a difficult situation if the propounder of the Will is able to examine the attestors of the Will and they speak to the alleged execution of the Will and in that situation, an opportunity for petitioners to prove that the Will is not executed by late Kunjikkavamma is lost by Ext.P4, order. It is pointed out that in deciding due execution of the Will, opinion of the expert is also relevant. OP(C) No.2402/2011 2 3. Learned counsel for respondents did not have serious objection to the document being sent to the expert for opinion. But, learned counsel cautioned that comparison of the signature/thumb impression (as the case may be) of testator in the Will must be with the admitted thumb impression/signature during the period the Will was executed. That is a matter which the learned Sub Judge has to take into account and pass appropriate orders as circumstances warranted and considering the availability of contemporaneous signature/thumb impression (as the case may be) 4. In view of the submissions made by both sides and bearing in mind that expert opinion is also relevant in deciding the issue, I am inclined to allow this petition. Resultantly this Original Petition is allowed. Ext.P4, order is set aside and Ext.P3, application is allowed. Learned Sub Judge shall take the necessary steps to send the disputed Will to the expert for opinion in the light of the observations I have made above as to the admitted signature/thumb impression which is required to be compared with the disputed one in the disputed Will. THOMAS P.JOSEPH, Judge. cks