IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 8TH DECEMBER 2011 / 17TH AGRAHAYANA 1933 OP(C).No. 4013 of 2011(O) -------------------------------------- O.S.104/2009 OF SUB COURT, THIRUVALLA. .................... PETITIONER: -------------------- K. RAMACHANDRAN NAIR, CHAKKALAKIZHAKKETHIL HOUSE, PARUMALA P.O., THIRUVALLA, PATHANAMTHITTA DISTRICT. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR, SRI.T.K.ANANDA KRISHNAN, SRI.JELSON J.EDAMPADAM. RESPONDENT(S): ------------------------- C.K. AMMINI KUTTY AMMA, MANOJ VILLA, KEEZHCHERIMEL, CHENGANNUR VILLAGE, CHENGANNUR, ALAPPUZHA DISTRICT- 689 121. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 4013 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN OS.104/2009 OF THE SUB COURT THIRUVALLA. EXT.P2 TRUE COPY OF the WRITTEN STATEMENT FILED BY THE RESPONDENT IN OS. 104/2009. EXT.P3 TRUE COPY OF THE PLAINT IN OS.198/2009 FILED BY THE PETITIONER. EXT.P4 TRUE COPY OF THE AFFIDAVIT AND THE INTERIM APPLICATION NO.909/2010 FILED BY THE RESPONDENT BEFORE THE COURT BELOW. EXT.P5 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER TO EXT.P4 APPLICATION. EXT.P6 TRUE COPY OF THE JUDGMENT IN OPC.55.2011. EXT.P7 TRUE COPY OF THE INTERIM APPLICATION NO.1078/2011 DT.7.10.2011 ALONG WITH THE AFFIDAVIT FILED IN SUPPORT OF THE SAME. EXT.P8 TRUE COPY OF THE APPLICATION NO.1104/2011 ALONG WITH THE AFFIDAVIT. EXT.P9 TRUE COPY OF THE COUNTER AFFIDAVIT FIELD BY THE RESPONDENT IN IA.1078/2011. EXT.P10 TRUE COPY OF THE ORDER DT.8.11.2011 IN IA.909/2010 IN OS.104/2009. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.4013 of 2011 --------------------------------------- Dated this 08th day of December, 2011 JUDGMENT Petitioner is the plaintiff in O.S.No.104 of 2009 of the Court of learned Sub Judge, Thiruvalla challenging Ext.P10, order on I.A.No.909 of 2010. 2. Petitioner sued the respondent for declaration of title claimed by him over the suit property on the strength of a Will dated 26.02.2006 allegedly executed by his sister, P.K.Thankamma. Respondent, while denying execution of that Will claimed title over the property as per Will executed by Suresh, son of the said Thankamma in the year 2009. Respondent filed I.A.No.909 of 2010 to send the Will dated 26.02.2006 to the expert for opinion. She requested that the disputed signature in the Will dated 26.02.2006 may be compared with the signature of the said Thankamma in partition deed No.840 of 1961. She also prayed that thumb impression of the said Thankamma may be subjected to expert opinion. That application was allowed by the learned Sub Judge. Hence the challenge to Ext.P10, order. O.P(C).No.4013 of 2011 -: 2 :- 3. It is contended by learned counsel that request to send the Will of the year 2009 relied on by the respondent to the expert was not considered. 4. But the question is whether petitioner got title over the property as per Will dated 26.02.2006 on the death of P.K Thankamma who said to have executed that Will. That is the question trial court is required to decide. It is pointed out by learned counsel that there is a prayer in the suit to set aside the Will of the year 2009 allegedly executed by Suresh. But, Suresh could get right over the property only by intestate succession on the death of Thankamma. Therefore, what is relevant for adjudication is whether Will dated 26.02.2006 is the last Will and testament of the said Thankamma. Therefore there is nothing wrong in learned Sub Judge sending the said Will to the expert. 5. It is pointed out by learned counsel that the document sent for comparison is partition deed of the year 1961 while the disputed Will is of the year 2006. Learned counsel submits that there is possibility of vast difference occurring in the signature of the executant on account of such long lapse of time. It is also submitted by learned counsel that in respect of another item of property the said Thankamma and Suresh have executed O.P(C).No.4013 of 2011 -: 3 :- document No.961 of 2007 and that being nearer to the relevant time of the disputed Will has to be send to the expert for opinion along with the disputed Will. That certainly is a request which petitioner can make before the learned Sub Judge by a separate application since such a request is not seen negatived by Ext.P10, order. Resultantly this original petition is disposed of without prejudice to the right of petitioner to request learned Sub Judge to send the latest document containing the admitted signature of Thankamma also to the expert for opinion along with the disputed Will. If any such request is made learned Sub Judge shall decide that as provided under law after hearing both the parties. (THOMAS P. JOSEPH, JUDGE) Sbna/-