IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 WP(C).No. 22636 of 2010(O) -------------------------- OS.304/2006 of MUNSIFF COURT, HOSDRUG .................... PETITIONER/ PLAINTIFF: ------------------------ C.NARAYANAN VAZHUNNAVAR, AGED 78 YEARS, S/O. LATE NARAYAA VAZHUNNAVAR, RESIDING AT ALANTHATTA, KAYYUR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.T.K.VIPINDAS SMT.P.K.PRIYA SRI.K.V.SREE VINAYAKAN RESPONDENTS/DEFENDANTS: ------------------------- 1. PARVATHY ANTHARJANAM, AGED 65 YEARS, D/O LATE ARYANAN VAZHUNNAVAR, W/O.LATE NARAYANAN KANATHAYA, RESIDING AT NAMBIARKAL, PUTHUKAI VILLAGE. 2. SAVITHRI ANTHARJANAM, AGED 70 YEARS, W/O LATE TRIVIKRAMAN VAZHUNAVAR, RESIDING AT KAYYUR, KAYYUR VILLAGE HOSDURG TALUK. 3. PARVATHY ANTHARJANAM, AGED 51 YEARS, D/O. LATE TRIVIKRAMAN VAZHUNNAVAR, RESIDING AT THEERTHANKARA, PADNEKKAD, , KANHANGAD VILLAGE, HOSDURG TALUK. 4. SAVITHRI, AGED 48 YEARS, D/O. LATE TRIVIKRAMAN VAZHUNNAVAR, RESIDING AT CHERIYAKKARA, KAYYUR VILLAGE, HOSDURG TALUK. 5. NARAYANAN VAZHUNNAVAR, AGED 46 YEARS, S/O.LATE TRIVIKRAMAN VAZHUNNAVAR, RESIDING AT CHERIYAKKARA, KAYYUR VILLAGE, HOSDURG TALUK. 6. PARAMESHWARAN VAZHUNNAVAR, AGED 41 YEARS S/O. LATE TRIVIKRAMAN VAZHUNNAVAR, RESIDING AT CHERIYAKKARA, KAYYUR VILLAGE, HOSDURG TALUK. 7. TRIVAKIRAMAN VAZHUNNAVAR, AGED 46 YEARS, S/O.LATE TRIVIKRAMAN VAZHUNNAVAR, RESIDING AT CHERIYAKKARA, KAYYUR VILLAGE, HOSDURG TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No. 22636 of 2010 --------------------------------------- Dated this 20th day of July, 2010 JUDGMENT Plaintiff in O.S.No.304 of 2006 of the court of learned Munsiff, Hosdurg is the petitioner. He challenges Ext.P12, order passed by the learned Munsiff refusing to sent the disputed Will along with one of the documents containing admitted signature of the testator to the same expert for further comparison and report. Petitioner sued respondents for partition. Respondents set up a Will allegedly executed by one Parameshwaran Vazhunnavar. Since execution of the Will was not admitted by petitioner, respondent Nos.2 to 7 filed I.A.No.3937 of 2007 to send the disputed Will to the expert for comparison with the admitted signatures. That application was allowed and the document was sent to the State Forensic Science Laboratory (for short, “the FSL”) for report. Ext.P3 is the report given by the FSL where it is stated that it was not possible for the FSL to arrive at a conclusive opinion. Thereafter respondents filed I.A.No. 3557 of 2008 to send the Will to another expert for opinion. That application was allowed and document was send to the Finger Print and Handwriting Analysis Bureau, Calicut (for short, “the Bureau”). According to the petitioner, respondents filed Ext.P8, application to send Ext.P9, W.P.C.No.22636 of 2010 : 2 : partition deed which contained admitted signature of the testator to the expert, that application was allowed and Ext.P9, partition deed was forwarded to the Bureau for comparison with the disputed signature in the Will. That bureau has given Ext.P10, report stating that disputed signature in the Will is that of the testator. Then came Ext.P11, application from petitioner stating that the bureau has not perused Ext.P9, partition deed while arriving at the conclusion that disputed Will contained the signature of testator and requesting to direct the Bureau to examine the disputed signature with the signature in Ext.P9. Learned Munsiff dismissed Ext.P11, application as per Ext.P12,order. That order is under challenge. Learned counsel for petitioner contends that examination of Ext.P9, partition deed which is admitted by both sides as containing signature of the testator was necessary for arriving at a proper conclusion regarding disputed signature in the Will. Learned Munsiff has observed that the process of sending the disputed document to the expert, one after the other could only delay the proceeding and that without sufficient evidence court cannot come to the conclusion that report is not correct. 2. I must bear in mind that since execution of disputed Will is denied by petitioner burden of proving the same is on the propounder and evidence as provided under Section 68 of the W.P.C.No.22636 of 2010 : 3 : Evidence Act has to be let in. No doubt, expert opinion is also relevant for decision of the matter. But expert opinion is only advisory in character. After all it is not as if petitioner is relying on the impugned report for purpose of proving his case. Petitioner has the opportunity to examine the expert who prepared Ext.P10, report and bring out from him that the relevant documents including Ext.P9 were not perused before arriving at the conclusion stated in Ext.P10 and hence, that report is not reliable. Learned Munsiff has also observed that without sufficient evidence court cannot come to the conclusion that report is wrong. In the above circumstance and particularly as petitioner has not shown that the report is not acceptable there is no reason why this court should interfere in the matter. Without prejudice to the right of petitioner to prove at the time of trial that Ext.P10, report is not acceptable this writ petition is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-