IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 6TH JUNE 2011 / 16TH JYAISHTA 1933 OP(C).No. 1450 of 2011(O) ------------------------- OS.62/2009 of SUB COURT, THODUPUZHA .................... PETITIONERS : ----------------------- 1. MANESH P.KUMAR, S/O. LATE P.N.KUMARAN. 2. P.K.LALITHAMANI, W/O. LATE P.N.KUMARAN, BOTH ARE RESIDING AT PULIMOOTTIL HOUSE, VANNAPPURAM VILLAGE, THODUPUZHA TALUK, PIN - 685 582. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP SRI.MATHEWS RAJU RESPONDENT(S): ---------------------- 1. MANOJ P.KUMAR, S/O. LATE P.N.KUMARAN, RESIDING AT PULIMOOTTIL HOUSE, VANNAPPURAM VILLAGE, THODUPUZHA TALUK, PIN - 685 582. 2. MANU MANOJ, S/O. MANOJ P.KUMAR, RESIDING AT PULIMOOTTIL HOUSE, VANNAPPURAM VILLAGE, THODUPUZHA TALUK, PIN - 685 582. 3. P.R.PAVITHRAN, S/O. RAGHAVAN, RESIDING AT PALLIKKADAVIL HOUSE, LAJANATH WARD, ALAPPUZHA - 678 001. ADV. SRI.GEORGE POONTHOTTAM FOR R THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OPC 1450/2011 APPENDIX PETITIONERS' EXHIBITS : EXT.P1 : COPY OF I.A.NO.84/2011 IN O.S.NO.62/2009 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF THODUPUZHA DATED 27.1.2011. EXT.P2: COPY OF THE COUNTER AFFIDAVIT FILED BY THE PLAINTIFF TO I.A.NO.84/2011 DATED 1.2.2011. EXT.P3: COPY OF THE REJOINDER FILED BY DEFENDANTS 2, 4 AND 5 TO I.A.NO.84/2011 DATED 2.2.2011. EXT.P4: COPY OF THE ORDER IN I.A.NO.84/2011 IN O.S.NO.62/2006 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF THODUPUZHA DATED 16.3.2011. RESPONDENTS' EXHIBITS : NIL //TRUE COPY// P.A. TO JUDGE K.T.SANKARAN, J. -------------------------------------- O.P.(C).No.1450 of 2011 --------------------------------------- Dated this the 6th day of June, 2011 JUDGMENT The Original Petition is filed by the plaintiff and the first defendant in O.S.No.62 of 2009 on the file of the court of the Subordinate Judge of Thodupuzha challenging the order in I.A.No.84 of 2011. 2. The suit is for partition. According to the plaintiff, the predecessor in interest of the parties, namely, Kumaran, executed a Will dated 8.10.2003 and it is the last Will executed by him. According to the contesting defendants, the Will dated 31.8.2007 (Exhibit B1) is the last Will executed by Kumaran. The plaintiff disputed the Will dated 31.8.2007. 3. PWs 4 and 5 are the attesting witnesses to Exhibit B1 Will. They were examined on the side of the OPC 1450/2011 2 plaintiff. Those witnesses had filed affidavits which were marked as Exhibit A10 and Exhibit A11 and later, they were examined as witnesses. The Sub Registrar was examined as DW3. 4. The contesting defendants filed I.A.No.84 of 2011 to forward Exhibit B1 Will and Exhibit B9 registered document which was admittedly executed by Kumaran, for comparison of the thumb impression of the executant of the Will. They also prayed for sending the relevant register kept in the Sub Registrar's office for comparison of the finger impression of PWs 4 and 5. 5. The court below, by the order dated 16th March, 2011, allowed the application, which is under challenge in this Original Petition. The court below considered all the relevant aspects and relied on the decision in Varghese vs. Poulose and others (1974 KLT 873) and held that in the interests of OPC 1450/2011 3 justice, it is necessary to allow the application. The court below held that even if the attesting witnesses to the Will falsely denied their signatures in the Will, the court is entitled to look into the other circumstances to arrive at the conclusion as to whether they attested the Will. 6. I do not find any illegality, irregularity or impropriety in the order passed by the court below, warranting interference under Article 227 of the Constitution of India. The Original Petition is accordingly dismissed. K.T.SANKARAN JUDGE csl