IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 WP(C).NO. 11740 OF 2010(O) ---------------------------------------- AGAINST THE ORDER DATED 20/03/2010 IN I.A. NOS.111 & 112 of 2010 IN OS.162/2007 OF M.C.,VADAKKANCHERRY .................... PETITIONER(S): -------------------- 1. VENUGOPALAN,S/O.CHETTUTTI SAROJINIAMMA ERANELLOOR VILLAGE,THALAPPILLY TALUK. 2. PRIYA.,W/O.VENUGOPALAN, ERANELLOOR VILLAGE,THALAPPILLY TALUK. BY ADV. SRI.A.ANTONY SMT.LEELAMMA ANTONY RESPONDENT(S): ---------------------- KOCHUKRISHNAN NAIR, S/O.KIZHAKKUVETTIL (LATE) GOVINDAMENON AND AMMU AMMA, EYYAL VILLAGE, THALAPPILLY THALUK,THRISSUR DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.11740 of 2010 ==================================== Dated this the 19th day of May, 2010 J U D G M E N T Heard both sides. 2. Writ Petition is in challenge of order passed by learned Munsiff, Wadakkanchery in I.A.No.111 of 2010. Respondent filed the suit for declaration that suit property belonged to him and defendant No.3 onwards as legal representatives of the late Saradamma and for consequential injunction. Petitioners/defendant Nos.1 and 2 resisted the suit setting up title and possession of the suit property in them as per a Will dated 18.8.1999 allegedly executed by the said Saradamma bequeathing the properties to them. Respondent/plaintiff disputed the Will and filed I.A.No.2086 of 2007 to send the Will to the Expert for examination. That application was allowed and copy of the Will and Service Book of the late Saradamma were sent to the Expert for examination, Vide Exts.P1 and P2 Expert asked for original of the Will and recent signatures of the late Saradamma for comparison but recent signatures of the late Saradamma were not send to the Expert for one reason or the other. According to W.P(C) No.11740 of 2010 -: 2 :- the petitioners fact of Exts.P1 and P2 was not brought to their notice, while learned Munsiff has stated in the impugned order that in spite of Exts.P1 and P2 no action was taken by the petitioners to send the recent signatures. Later, based on the materials available with the Expert he sent Ext.P3, report stating that the signature in the disputed Will did not appear to be that of the author of the signature in the Service Book. Not satisfied with that report of the Expert, petitioners filed Ext.P4, I.A. No.111 of 2010 to send the Will to the Forensic Science Laboratory (for short, “the FSL”) for examination. They also filed Ext.P5 (I.A. No.112 of 2010) to call for records from certain Banks which according them contained the recent signatures of the late Saradamma. Applications were resisted by the respondent. Vide Exts.P6 and P7, order learned Munsiff has dismissed Exts.P4 and P5. Orders on I.A. Nos.111 and 112 of 2010 are under challenge in this Writ Petition. Learned counsel for petitioners submits that in the light of Exts.P1 and P2 where according to the learned counsel, the Expert has expressed his inability to compare the disputed signatures with the available signatures, learned Munsiff ought to have allowed I.A. No.111 of 2010 and send the Will to the FSL. Leaned counsel for respondent would submit that in W.P(C) No.11740 of 2010 -: 3 :- Exts.P1 and P2 there is no expression of inability on the part of the Expert to examine the disputed Will with the available admitted and disputed signatures and what the Expert had done is to suggest that recent signatures may also be sent. 3. I am not, at present on the controversy whether the Expert was right in giving Ext.P3, report or the materials available with him was sufficient to reach the conclusion stated in Ext.P3. Question is whether at this stage request of petitioners to send the disputed Will to the FSL has to be allowed. Learned Munsiff has stated that Ext.P3, report has not so far been set aside and that it will be open to the petitioners to raise all challenges against Ext.P3, report at the stage of trial and to file fresh application for sending the disputed Will for expert opinion if Ext.P3 is found not acceptable. In other words, learned Munsiff has left open the issue to be decided on evidence whether Ext.P3 is acceptable or not. Petitioners have the occasion to challenge Ext.P3, order, summon the Expert and show that the report is inconclusive or wrong for whatever reasons they have urged in this petition and in I.A.No.111 of 2010. As such on the facts and circumstances and in the light of the right of petitioners reserved by learned Munsiff there is no reason, at this stage to send the W.P(C) No.11740 of 2010 -: 4 :- Will to the FSL for opinion. Without prejudice to the right of petitioners as provided under law and as reserved by the order under challenge, this Writ Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv