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. 18982 OF 2010(O) ----------------------------------------- I.A. NO. 634 OF 2009 IN O.S.574/2008 OF MUNSIFF COURT, PARAVUR .................... PETITIONER(S): ---------------------- RAJAN.,S/O.KUMARAN, ALUNGAPOKKATH VEETIL KIZHAKKEPPURAM, KOTTUVALLY,NORTH PARAVUR. BY ADV. SRI.LIJU. M.P RESPONDENT(S): ------------------------- RENJAN,S/O.KUMARAN,ALUNGAPOKKATH VEETTIL NOW RESIDING AT EASTERN SIDE OF KOTTUVALLY PANCHAYATH OFFICE, KIZHAKKEPPRAM, KOTTUVALLY, NORTH PARAVUR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) 18982 of 2010 ==================================== Dated this the 18th day of June, 2010 J U D G M E N T This Writ Petition arises from the order passed by the court of learned Munsiff, North Paravur on I.A. No.634 of 2009 in O.S. No.574 of 2008 declining to send the Will in question to the Expert for opinion as to the thump impression of the testator. Petitioner filed the suit seeking partition of the suit property on the allegation that it belonged to his mother, Devaki who expired on 08.10.2006. Devaki had nine children including petitioner, respondent and other defendants in the suit. Petitioner sought partition and separate possession of his share in the property. Respondent/defendant No.8 resisted the suit on the strength of a registered Will claiming that it was executed by the deceased Devaki bequeathing the suit property in his favour. Petitioner filed I.A. No.634 of 2009 to send the said Will for expert opinion. In the affidavit in support of the application it is stated that after the institution of the suit petitioner came to be in possession of a document executed by the said Devaki which revealed that thump impression in that document as well as the Will in question are W.P(C) No.18982 of 2010 -: 2 :- different. Therefore to identify the thump impression in the Will petitioner requested to send the Will for expert opinion. Learned Munsiff accepted the objection raised by the respondent and in the light of the pleadings made by the petitioner in the plaint disallowed the prayer. That order is under challenge in this Writ Petition. Learned counsel for petitioner contends that it is now revealed from records that the Will in question was not actually executed by the late Devaki which fact was not known to him at the time of filing the suit and hence petitioner happened to make certain pleas in the plaint. That should not stand in the way of petitioner proving that the Will is not genuine. Learned counsel contends that so far as proof of Will is concerned it is easy for the respondent to prove the same by the examination of attesters who are close friends or relatives of respondent. 2. I have gone through a copy of plaint (Ext.P1) where it is specifically stated that respondent has been claiming right over the property as per the Will executed by the late Devaki, the said Will is result of undue influence and coercion and hence petitioner seeks a declaration that the said Will is not valid. There is no whisper in the plaint that the Will is result of forgery and instead plaint proceeds on the basis that the Will was executed by the W.P(C) No.18982 of 2010 -: 3 :- late Devaki but as claimed by petitioner, under threat and undue influence. In other words the only vitiating circumstance pleaded by petitioner is that the Will was got executed under threat and undue influence which pre-supposes that the document was executed by the late Devaki. In the light of that contention in the plaint there is no scope for sending the Will to the Expert for opinion. As such learned Munsiff is right in rejecting the request for sending the Will for expert opinion. I do not find reason to interfere with that finding. Writ Petition fails. It is dismissed. THOMAS P. JOSEPH, JUDGE. vsv