IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 2ND SEPTEMBER 2011 / 11TH BHADRA 1933 WP(C).NO. 23746 OF 2010(O) ----------------------------------------- OS.237/2007 OF MUNSIFF COURT,VARKALA PETITIONER(S): --------------------- SASIDHARAN, S/O.RAGHAVAN, KUTTIVETTIYIL VEEDU, AYROOR DESOM, AYROOR VILLAGE, AYROOR.P.O., (VIA VARKALA, THIRUVANANTHAPURAM DISTRICT.) BY ADV. SRI.R.ANILKUMAR RESPONDENT(S): ------------------------ 1. RADHA, D/O.RAGHAVAN, RETIRED GOVT. EMPLOYEE, RADHANAND, MUNDAYIL, VARKALA, PIN-695 141. 2. REMA, D/O.NARAYANAN, GANGAKUNJU, A-506, KALAS VISRANTHVADI, PUNE-15, PUNE DISTRICT. 3. RESHMA, D/O.RAJAN, GANGAKUNJU, A-506, KALAS VISRANTHVADI, PUNE-15, PUNE DISTRICT. 4. RATHI, D/O.RAJAN, GANGAKUNJU, A-506, KALAS VISRANTHVADI, PUNE-15, PUNE DISTRICT. 5. PRABHA, D/O.RAMAKRISHNAN VAIDHYAR, GAYATHRI VMV, 18/472, VARKALA.P.O., PIN-695 141. ADV. SRI.PIRAPPANCODE V.S.SUDHIR FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C) NO.23746 OF 2010 APPENDIX PETITIONER(S)' EXHIBITS: EXHIBIT P1 THE TRUE PHOTOCOPY OF PLAINT IN O.S. NO.237 OF 2007 OF THE MUNSIFF'S COURT, VARKALA DATED 08.10.2007. EXHIBIT P2 THE TRUE PHOTOCOPY OF THE WRITTEN STATEMENT FILED BEFORE THE MUNSIFF'S COURT, VARKALA ON 27.08.2008. EXHIBIT P3 THE TRUE PHOTOCOPY OF THE PETITION IN I.A. NO.1091 OF 2009 IN O.S. NO.237 OF 2007 FOR EXPERT OPINION FILED BEFORE THE MUNSIFF'S COURT, DATED 1.6.2009. EXHIBIT P4 THE TRUE PHOTOCOPY OF THE ORDER IN I.A. NO.1091 OF 2009 IN O.S. NO.237 OF 2007 DATED 30.6.2009. RESPONDENT(S)' EXHIBITS: TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== W.P(C) No.23746 of 2010 ==================================== Dated this the 02nd day of September, 2011 J U D G M E N T Petitioner-plaintiff in O.S. No.237 of 2007 of the court of learned Munsiff Varkala challenges Ext.P4, order dated June 30, 2010 on I.A. No.1091 of 2009 refusing to send the disputed Will to the Expert for opinion as requested by petitioner. 2. Petitioner sued for partition and separate possession of his 1/3rd share in the suit property. The 5th respondent claimed to be wife of the late Sathyadeva Panicker. The 5th respondent claimed right over the property as per a Will said to be executed by the said Sathyadeva Panicker. That was disputed by petitioner. Petitioner filed Ext.P3, application to get Expert opinion on the disputed Will. That application was resisted by the 5th respondent. Learned Munsiff, placing reliance on the decision in Saraswathy v. Bhavathy Ammal and Anothr (1988 [2] KLT 736) held that Expert opinion is not required, nor is relevant in proving the Will. Learned Munsiff also placed reliance on the decision in Yumnam Onghi Thampha Homa Devi v. Yumnam W.P(C) No.23746 of 2010 -: 2 :- Joykumar Singh and Others ([2009] 4 SCC 780). It is contended by learned counsel for petitioner that the decision in Saraswhaty's case has been overruled by the Division Bench in Sumangala T.Pai v. Sundaresa Pai (1991 [1] KLT 246). It is the further contention that opinion of the Expert is relevant in deciding the genuineness of the Will though the propounder is required to prove it under Section 63 of the Succession Act and Section 68 of the Evidence Act. 3. Learned counsel for the 5th respondent contended that the Will is to be proved in the manner stated in Sec.63 of the Succession Act and Sec.68 of the Evidence Act and that it is not necessary to send the disputed Will for opinion. 4. The decision in Saraswathy's case relied on by the learned Munsiff has been overruled in Sumangala T.Pai's case where the Division Bench has held that proof of signature of testator in a Will is a vital matter which is required to be proved and that it is not as if other kinds of evidence to prove the same are not relevant. It was held that if there is anything suspicious in the signature of the testator or as to who attested the signature, the same can be corroborated or contradicted by Expert opinion. In other words even in the matter of proof of Will, W.P(C) No.23746 of 2010 -: 3 :- Expert opinion is not wholly ruled out. Opinion of the Expert is also relevant for deciding due execution of the Will. I have gone through the decision in Yumnam Onghi Thampha Homa Devi's case where no contra view is seen taken. The Supreme Court only pointed out the requirement of a valid Will with reference to Sec.63 of the Succession Act and Sec.68 of the Evidence Act. 5. No doubt the Will has to be proved by the 5th respondent since execution is denied by petitioner. But as I stated, opinion of the Expert is not altogether ruled out. I am inclined to agree with the learned Munsiff that at the preliminary stage it is not necessary to send the document to the Expert. But at the proper stage if learned Munsiff has reason to suspect genuineness of the signature, it is open to the learned Munsiff to send the document for Expert opinion. In the view I have taken, the matter has to go back to the learned Munsiff for fresh decision at the appropriate stage. Writ Petition is allowed. Exhibit P4, order on I.A. No.1091 of 2009 is set aside and that application is remitted to the learned Munsiff for decision at appropriate stage. I make it clear that it is the obligation of the propounder of the Will to prove its due execution and attestation Will as provided under Sec.63 of the W.P(C) No.23746 of 2010 -: 4 :- Succession Act and Sec.68 of the Evidence Act. I also make it clear that if in the course of evidence learned Munsiff considers it necessary that opinion of the Expert is necessary, it is open to the learned Munsiff to pass appropriate orders on I.A. No.1091 of 2009 as provided under law. THOMAS P. JOSEPH, JUDGE. vsv