IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 26TH FEBRUARY 2008 / 7TH PHALGUNA 1929 WP(C).No. 6593 of 2008(I) ------------------------- (I.A.4055/07 IN O.S.634/06 OF ADDL. MUNSIFF-I, KOZHIKODE) PETITIONER: SUPPLEMENTAL 6TH DEFENDANT -------------------------------------- SANTHOSH ERALI, S/O.CHANDRAN, CHERUVANNOOR, P.O.FEROKE, KOZHIKODE TALUK. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENTS: PLAINTIFF & DEFENDANTS ----------------------------------- 1. YESODHA, W/O.KANARAKUTTY, ERALI HOUSE, KARUVISSERY, KOZHIKODE. 2. CHANDRAN, S/O.UNNEERI, KARUVISSERY, KOZHIKODE. 3. K.M.PREMALATHA, D/O.LAKSHMI ALIAS KUTTILA, KARAMACHATH HOUSE, VENGERI. 4. N.V.DEVI, D/O.LAKSHMI ALIAS KUTTILA, KUNNUMMEL THAPPATHA HOUSE, MAKKADA. 5. T.USHA KUMARI, D/O.LAKSHMI ALIAS KUTTILA, POKKAR THODI, PUTHIYANGADI. 6. BABU, S/O.LAKSHMI ALIAS KUTTILA, KOTHANGAD PARAMBU, FLORIKKAN ROAD, MALAPARAMBA. BY SRI.K.M.FIROZ THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 6593 OF 2008 --------------------- Dated this the 26thday of February, 2008 JUDGMENT This writ petition is preferred to set aside the order passed by the Addl. Munsiff, Kozhikode, in IA 4055/07 in OS 634/06. The court below refused to entertain the application filed by the additional 6th defendant in that case to send the document 63/90 (disputed Will) for comparison by an expert. 2. It is submitted by learned counsel for the writ petitioner that by virtue of the Will executed by one Malukutty Amma, he has got one out three shares over the property and the contention of the plaintiff that Malukutty Amma has not executed the will, is not correct. According to him, there is a signature of Malukutty Amma in the opening form of account before the Canara Bank, which is summoned and produced before the court. It is submitted that if the signature in the Will is compared with the signature in the application form, it will give a clear finding regarding the genuineness of the signature. 3. On the other hand, learned counsel for the respondents very strongly objects to the same on the ground that (i) on an earlier occasion a comparison of signature had been done at the instance of the plaintiff and (ii) they did not admit the signature of the Malukutty Amma in the formkept WPC NO 6593/08 2 by the Bank. Learned counsel for the writ petitioner would submit that reference to an expert was with respect to another Will and not the one in dispute. 4. Whatever it may be, the crucial question to be decided in this case is with respect to the validity and genuineness of the Will alleged to be executed by Malukutty Amma. The court has to consider independently whether such a comparison, as prayed for, is necessary in accordance with the provisions of law bearing in mind the principles under Section 45 of the Evidence Act and Section 73 of the Evidence Act. Therefore the matter requires reconsideration at the hands of the court below. The order under challenge is set aside. Learned Additional Munsiff, Kozhikode, is directed to consider IA 4055/07 in OS 634/06 afresh after hearing both sides and to dispose of the matter in accordance with law within a time frame of one month from the date of receipt of a copy of this judgment. Needless to say, both parties can raise their contentions which they want to raise in IA 4055/07. The writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE vps WPC NO 6593/08 3 WPC NO 6593/08 4 WPC NO 6593/08 5