IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 WP(C).No. 34957 of 2008(J) --------------------------------------- (I.A. NO. 763/2005 IN OS.NO.102/2000 OF MUNSIFF COURT, MANJERI) .................... PETITIONER: ------------------- JOSE, S/O.MATHEW, PAYYANAD AMSOM DESOM, MANJERI, MALAPPURAM DT. BY ADVS. MR.T.K.AJITH KUMAR, MR.P.VINODKUMAR. RESPONDENTS: ------------------------ 1. PULIKKOD VIJAYALAKSHMI, D/O.LATE LAKSHMIKUTTY AMMA, MANJERI AMSOM, DESOM, MALAPPURAM DT. 2. NHARAKKOTT KALATHIL SREELATHA, D/O.SANTHA KUMAR AMMA, MANJERI AMSOM DESOM, MALAPPURAM DT. 3. KUNNAMPURATH MATHEW, S/O.MATHEW, OLAPPARA, IDUKKI. 4. MERY, W/O.JOSEPH, PUTHENPURAYIL (H), NERYAMANGALAM P.O. ERNAKULAM (DT). 5. JASINTHA BABY, W/O.BABY, MATHATTIL (H), PERAVOOR.P.O., KANNOOR (DT). 6. RAJEENA @ DAISY, D/O.MATHEW, JOHARBAG, D.NO.7/102, UTTARPRADESH STATE. 7. SHYNI, W/O.SHABU, KARUVARAKUNDU AMSOM, NILAMBUR. 8. LAISA, W/O.JOSE, PAYYANAD AMSOM DESOM, MALAPPURAM DT. R1 BY ADVS. MR.T.SETHUMADHAVAN, MR.PUSHPARAJAN KODOTH, MR.K.JAYESH MOHANKUMAR, R3 TO R8 BY ADV. MR.SUSHANTH.J. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/08/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.34957/2008-J: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. NO. 102/2000. EXT.P.2: COPY OF THE ABOVE JUDGMENT IN W.P.(C).NO.11863/2005 (K) DTD. 22/07/2008. EXT.P.3: COPY OF THE I.A. NO. 763/2005 IN O.S. NO. 102/2000. EXT.P.4: COPY OF THE ORDER IN I.A. NO. 763/2005 IN O.S. NO. 102/2000 DTD. 03/11/2008. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.34957 OF 2008 (j) ----------------------------------- Dated this the 21st day of August, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs: i. to call for the records leading up to Ext.P4 order dated 3.11.2008 in I.A.No.763 of 2005 in O.S.No.102 of 2000 passed by the Munsiff Court, Manjeri and set aside the same. ii. to issue any other appropriate writ, order or direction as the case may be as this Honourable Court may deem fit and necessary in the interest of justice. 2. Petitioner is the 7th defendant in O.S.No.102 of 2000 on the file of the Munsiff Court, Manjeri. The above suit is one for partition, and the respondents are the plaintiff and the other defendants in the suit. The 2nd respondent as plaintiff laid the suit for partition setting forth a case that the property originally belonged to her mother Annakutty, and on her death, her husband got 1/3 rd right over the property. That 1/3 rd WPC.34957/08 2 right obtained by Mathew, the husband of Annakutty was conveyed to the plaintiff under a deed executed by him. The plaintiff, defendants 1 and 2 and another son of Annakutty namely, Jose, each has right over 1/9 th share in her property. The above referred Jose conveyed his right under a sale deed to the 6th defendant. Plaintiff sought for partition of her 3/9 th share in the property. Later, on the basis of the contentions raised by defendants 1 to 5 that later Annakutty had executed a will, 7th defendant Jose and another, 8th defendant, were additionally impleaded in the suit. Since the deed in favour of the plaintiff by Mathew, the husband of Annakutty and also the documents in favour of the 6th defendant by the 7th defendant, namely, Jose, son of Annakutty, were disputed by the other defendants, plaintiff had moved an application for forensic examination of those documents. Admittedly, the applications so filed were declined by the learned Munsiff, which was challenged earlier before this Court in W.P.(C). No.11863 of 2005. That writ petition was disposed by judgment dated 22nd July, 2008. While disposing the writ petition, this Court has held that so far as the documents WPC.34957/08 3 executed by the 7th defendant in favour of the 6th defendant, the burden of proving that document, if found necessary, was on the 6th defendant and not on the plaintiff. Presumably, on that observation, the 6th defendant moved an application to summon the 7th defendant to get his signature and sent over the document executed by him in his favour for forensic examination, contending that the 6th defendant had disputed execution of the deed. The learned Munsiff allowed the application of the 6th defendant/1st respondent in the writ petition. Propriety and correctness of that order is challenged in the writ petition by the 7th defendant invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 4. I heard the learned counsel for the petitioner and also the 1st respondent. The argument canvassed by the learned counsel for the petitioner is that at this stage of the suit, the forensic examination of the document purported to have been executed by the 6th defendant in favour of the 7th defendant after getting the signature of the 6th defendant is not WPC.34957/08 4 warranted. It is more so, according to the counsel, since the document which is sought to be compared has been produced in another suit and while disposing the writ petition moved by the plaintiff earlier, this Court has held that at the appropriate stage for comparison of the signatures by the court, plaintiff can file fresh petition for summoning those documents produced in the other suit. On the other hand, the learned counsel for the 1st respondent submitted that in view of the observations made in the previous statement, a copy of which is produced as Ext.P2, it was incumbent upon the 6th respondent to take steps to prove the document executed in his favour by the 7th defendant. Perusing Ext.P2 judgment rendered in the writ petition earlier moved by the plaintiff/2nd respondent, I find this Court has made an observation that the plaintiff has no burden to prove execution of document No.5245 of 1998, the document purported to have been executed by the 7th defendant in favour of the 6th defendant, and, it is for the 6th defendant to prove the same. That observation does not ipso facto compel the 6th defendant as to prove the execution of the above document by the WPC.34957/08 5 7th defendant by forensic examination. The above document being a registered document, it is not incumbent upon the 6th defendant to prove the signature of the 7th defendant, as the execution can be proved otherwise as provided by law. Presumptive value of the registered document will not be lost by mere denial of the execution by the executant of the document. Resistance put up by the 7th defendant to the forensic examination is also a circumstance which may give rise to an adverse interference that his denial is not bona fide. Forensic examination of registered document solely for the reason that the executant had been denied by the executant, normally, is not warranted unless special circumstances justifying such examination is found essential to prove due execution of that document. At this stage of the suit, solely for the reason that the 7th defendant has denied the execution of the document in his written statement without any other circumstance supporting that contention, no forensic examination of the document after summoning the 7th defendant and getting the signature is necessary. Ext.P4 order is set aside as the execution of that document can be WPC.34957/08 6 proved otherwise than by the forensic examination comparing the admitted signature of the executant with that appearing in the document. The writ petition is accordingly disposed. S.S.SATHEESACHANDRAN JUDGE prp