IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 18TH JUNE 2010 / 28TH JYAISTHA 1932 WP(C).NO. 11816 OF 2010(O) ---------------------------------------- AGAINST THE ORDER DATED IN IA.830/2009 IN OS.50/2007 OF SUB COURT, PATHANAMTHITTA .................... PETITIONER(S): ----------------------- SANTHINI P.C., AGED 33, WIFE OF BABUSEENAN, KOTTAMURIYICKAL, ERUVA P.O., PATHIYOOR VILLAGE, KAYAMKULAM TALUK. BY ADV. SRI.T.K.VENUGOPALAN SRI.ROY THOMAS (PATHANAMTHITTA) SRI.SHIBU JOSEPH RESPONDENT(S): ------------------------- 1. CHANDRAMATHI, WIFE OF ASHOKAN, PADINJARE KOTTINGAL, KIDANGANOOR VILLAGE, NEERVILAKOM MURI, KOZHANCHERRY TALUK. (P.O.). 2. P.C.PRASAD, SON OF LATE CHAKARAPANI, K.S.R.T.C. DRIVER, PATHANAMTHITTA DIPPO. (P.O.). 3. PODIYAN, PALANIKUNNATHIL, NEERVILAKOM MURI, KIDANGANNOOR VILLAGE, KOZHANCHERRY TALUK. (P.O.). ADV. SRI.V.PHILIP MATHEW FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.50 OF 2007 BEFORE THE SUB COURT, PATHANAMTHITTA. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY DEFENDANTS 1 AND 2 IN O.S. NO.50 OF 2007 BEFORE THE SUB COURT, PATHANAMTHITTA. EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE THIRD DEFENDANT IN O.S. NO.50 OF 2007 BEFORE THE SUB COURT, PATHANAMTHITTA. EXHIBIT P4 TRUE COPY OF I.A. NO.830 OF 2009 IN O.S. NO.50 OF 2007 BEFORE THE SUB COURT, PATHANAMTHITTA. EXHIBIT P5 TRUE COPY OF THE OBJECTION IN I.A. NO.830 OF 2009 IN O.S. NO.50 OF 207 BEFORE THE SUB COURT, PATHANAMTHITTA. EXHIBIT P6 TRUE COPY OF I.A. NO.1453 OF 2009 IN O.S. NO.50 OF 2007 BEFORE THE SUB COURT, PATHANAMTHITTA. EXHIBIT P7 TRUE COPY OF THE ORDER IN I.A. NO.830 OF 2009 IN O.S. NO.50 OF 2007 BEFORE THE SUB COURT, PATHANAMTHITTA DATED 16.11.2009. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.11816 of 2010 ==================================== Dated this the 18th day of June, 2010 J U D G M E N T Dispute before me is whether on the request of petitioner- additional Plaintiff No.6 the Will under challenge should be sent to an Expert for opinion as to the authenticity of the signature/thump impression of the testator found therein. According to the petitioner suit property belonged to one Kochayyappan who died intestate and thereon it devolved on his legal heirs - Kalyani, Govindan, Padmanabha Das and Lakshmi. Janaki is the daughter of Kalyani. Since all other legal heirs expired, Janaki was the only legal heir of Kocahayyappan. Hence the suit for a decree for declaration of title and possession. Pending suit Janaki died and thereon her legal representatives including petitioner were impleaded in the suit. Respondents- defendants claimed 3/4th right over the property as per a Will allegedly executed by Padmanabha Das. Disputing authenticity of the Will petitioner filed I.A. No.830 of 2009 to send the said Will to the Forensic Science Laboratory (for short, “the FSL”) for examination of the disputed signature/thump impression with the W.P(C) No.11816 of 2010 -: 2 :- admitted signature/thump impression of Padmanabha Das. Petitioner filed I.A. No.1453 of 2009 to direct the Sub Registrar, Aranmula to cause production of the original Thump Impression/Signature Register which according to the petitioner contain thump impression/signature of Padmanabha Das and which the petitioner assert if compared with the disputed thump impression/signature of the testator would show that the Will produced is a forged one. Applications were opposed by the respondents. Learned Munsiff allowed I.A. No.1453 of 2009 but dismissed I.A. No.830 of 2009 holding that opinion of the Expert in the matter of proof of Will is not relevant and that execution of the Will is to be proved by the propounder in accordance with Section 68 of the Indian Evidence Act (for short, “the Act”). A further observation made by learned Munsiff is that photocopies are produced praying that they are to be sent for comparison and hence the prayer cannot be allowed. Holding so I.A.No.830 of 2009 was dismissed. That is under challenge in this Writ Petition. Learned counsel for petitioner contends that order under challenge is erroneous as for the purpose of comparison of disputed signature/thump impression learned Sub Judge has ordered production of the Thump Impression/Signature Register. W.P(C) No.11816 of 2010 -: 3 :- It is the contention of respondents that petitioner at this stage need not take up the burden of proving due execution of the Will which is entirely on the contesting respondents which they are required to discharge by resort to Sec.63 of the Indian Succession Act and 68 of the Act. According to the learned counsel it is not necessary to send the Will for opinion to the FSL. Further contention is that though a release deed bearing No.3704 of 1989 is produced allegedly for the purpose of proving the handwriting of the scribe, affidavit in support of I.A. No.830 of 2009 does not reveal for what purpose the said document was produced and who executed the same. It is also the contention of learned counsel that the affidavit is not in accordance with the requirements of Order XIX Rule 1 of the Code of Civil Procure (for short, “the Code) and the Civil Rules of Practice (for short, “the Rules”) in that the deponent is shown to be aged 32 years in 2009 which meant that she was aged only 5 years at the time Padmanabha Das, executant of the Will died and hence she could not have any direct information as to the execution of the Will nor has she stated in what other way she got information regarding execution of the Will. Learned counsel lastly contended that if at all the Will is to be sent to the Expert for opinion it may be with W.P(C) No.11816 of 2010 -: 4 :- the Original document since photocopies are not useful for comparison and if it is a time consuming process the document may be sent to a private Expert for opinion. 2. It is not disputed that the Will is under challenge at the instance of petitioner and other plaintiffs in the suit who claim that their predecessor-in-interest, Janaki as the sole legal heir of Kalyani inherited the suit property and hence respondents have no right or interest in the property. Hence crucial question for a decision is whether so far as the 3/4th right claimed by respondents is concerned the Will relied on by respondents is the last Will and Testament of Padmanabha Das. Learned Sub Judge has observed and it is asserted by the learned counsel for respondents that in the matter of proof of Will opinion of Expert is not relevant. I am afraid, in the light of the decision of the Devision Bench of this Court in that regard observation made by learned Sub Judge has to be rejected. In Sumangala T.Pai v. Sundaresa Pai (1991 (1) KLT 246) the Division Bench has held that opinion of Expert as to the authenticity of signature of testator of Will is relevant. Hence opinion of the Expert is relevant. 3. No doubt, burden of proving due execution and W.P(C) No.11816 of 2010 -: 5 :- attestation of the Will is on the propounder and the manner of proof is provided in Section 63 of the Succession Act and Sec.68 of the Act. Petitioner has a contention that one of the attesting witnesses as well as the scribe are not alive. If that be so the Act provides for manner of proof of the signature of the deceased attesting witness and scribe. It is also true that Sec.101 of the Act states that burden of proof lies on the person who is to prove the existence or non-existence of a matter and who would fail if such proof is not adduced. But there is no bar in even before the propounder of the Will attempting to prove due execution of the Will, petitioner seeking expert opinion on the authenticity of the thump impression/signature in the disputed Will. Therefore contention of learned counsel for respondents that at this stage it is not necessary to send the document to the Expert cannot be sustained. 4. Then the next question is whether affidavit in support of the application is defective in the sense that statements made therein are are not by a person who has information about the matter deposed. Order XIX Rule 1 of the Code says that a court may require any fact to be proved by affidavit and that affidavit may be read at the time of hearing. Rule 3 states that affidavit W.P(C) No.11816 of 2010 -: 6 :- shall be confined to such facts as the deponent is able of his own knowledge to prove except on interlocutory applications on which statements of his belief may be admitted. Here request for sending the document to the Expert is made as per I.A. No.830 of 2009 supported by the affidavit of the deponent that the document in view of contention raised by petitioner as regards its genuinety has to be sent to the Expert. That is a matter which is within the knowledge of deponent. Deponent only seeks to send the Will to the Expert in view of the contention raised that the Will produced by the contesting respondents is not the last Will and Testament executed by Padmanabha Das. It is not as if deponent was incompetent to swear to that fact. 5. There is however, some merit in the objection of learned counsel that photocopies may not be sufficient for comparison with the disputed thump impression/signature. Petitioner has produced original of release deed No.3704 of 1989. True, respondents have a contention that it is not shown that the said document is relevant. But that is a matter which learned Sub Judge has to consider. If the document is relevant it has to be sent along with the disputed Will. So far as the Original Thump Impression Register maintained by the Sub Registrar is concerned, W.P(C) No.11816 of 2010 -: 7 :- that document has already been summoned by the learned Sub Judge as per order on I.A. No.1453 of 2009. Proviso to Rule 120(4) of the Rules states about Book No.IV produced by the District Registrar or Sub Registrar. Provision says that when Book No.IV is produced in court such court shall take a copy of the relevant portion and return the original to the officer concerned. That protection is not available to the Thump Impression/Signature Register in so far as it is not part of Book No.IV. Having regard to the facts and circumstances of the case I do not find reason to disallow the prayer of petitioner to send the disputed Will for expert opinion. Resultantly, Writ Petition is allowed in the following lines: (i) Dismissal of I.A. No.830 of 2009 is set aside and that application is allowed. The disputed Will along with relevant documents shall be sent to the Expert for opinion as prayed for. Learned Sub Judge after hearing the parties shall decide the Expert to whom the documents are to be sent. (ii) For comparison of the disputed handwriting/thump impression/ original of the relevant documents produced by petitioner and the original Thump Impression Register summoned from W.P(C) No.11816 of 2010 -: 8 :- the office of the Sub Registrar shall be sent to the Expert. Learned Sub Judge shall also issue specific direction to the Expert that no entry or mark shall be made in the Thump Impression Register so that its sanctity is preserved. (iii) Expenses of the Expert shall be met by the petitioner. Learned Sub Judge shall also ensure that Expert appointed completed the work as early as possible, that he keeps the Thump Impression Register in safe custody and returned it to the court in the same condition it is received. THOMAS P. JOSEPH, JUDGE. vsv