IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 26TH MAY 2010 / 5TH JYAISHTA 1932 WP(C).No. 16161 of 2010(O) -------------------------- OS.892/2008 of II ADDL.SUB COURT,ERNAKULAM .................... PETITIONER: --------------- SANTHAKUMARI, D/O.LATE RAMAN AND W/O.PANKAJAKSHAN, AGED 56, HOUSE WIFE, KANCHEEPURATH HOUSE, ENADI KARA, CHEMBU VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.K.C.CHARLES SRI.M.POLY MATHAI SRI.P.CHELLAPPAN RESPONDENTS: --------------- 1. SYONARETNAN, S/O.LATE RAMAN, CHONEKKATTU HOUSE, UDAYAMPEROOR.P.O. 2. KIRAN RETNAN, S/O.SYONARETNAN, CHONEKKATTU HOUSE, UDAYAMPEROOR.P.O. 3. KISHORE RETNAN, S/O.SYONARETNAN, CHONEKKATU HOUSE, UDAYAMPEROOR.P.O. 4. VARNNINI, W/O.MUKUNDAN, MOZHIKKODATH HOUSE, BRAHMAMANGALAM MURI, BRAHMAMANGALAM.P.O. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.16161 of 2010 --------------------------------------- Dated this 26th day of May, 2010 JUDGMENT Writ petitioner is the plaintiff in O.S.No.892 of 2008 of the Sub Court, Ernakulam. He sued for partition of suit properties claiming right over it consequent to the death of his father, Raman. Respondent Nos.1 to 3 set up Ext.P1, Will allegedly executed by the said Raman and his wife, Karthiayani claiming absolute right over the suit properties on the strength of that Will. Since the Will was disputed by petitioner/plaintiff and both the attesting witnesses in the Will were not alive, respondents examined DW3, daughter of one of the attesting witnesses but she was not able to identify the signature in Ext.P1, Will. Parties adduced evidence and the case was taken for judgment. Learned Sub Judge suo moto reopened the case for further hearing. Then came I.A.Nos.2232 of 2010, 2340 of 2010 and 2400 of 2010 from the side of defendant Nos.2, 4 and 5 and I.A.No.2246 of 2010 filed by the petitioner to send the disputed documents to the expert for opinion. Purpose of the said applications was to examine the signature of attestors in Ext.P1, Will, the signature of defendant No.3 in Exts.X3 and X4, that of the petitioner in Exts.X1, X2 and B11 and signature of testator in W.P.C.No.16161 of 2010 : 2 : Ext.P1. Learned Sub Judge after considering the contentions raised by either side allowed the application. That order is under challenge in this writ petition. Learned counsel for petitioner submits that Ext.P1, Will suffers from a galore of infirmities which cannot stand the test of the law and hence even if the signatures are proved to be that of persons referred to therein respondent cannot get over those infirmities and deprive petitioner of his right to get share in the suit property. Learned counsel has referred me to what he called the scratching of signature of the testator in the Will in question. It is also the contention of learned counsel that the very fact that all the female children are excluded from inheritance as per Ext.P1 indicates that it is fabricated. 2. Now I am not at the question whether the Will is genuine or not, or it suffers from any infirmity as learned counsel for petitioner would contend. Question is whether the disputed signatures are required to be examined by the expert considering the fact that both the attesting witnesses are not alive and DW3 the daughter of one of the attesting witnesses was not able to identify the signature in Ext.P1, Will. In such a situation it is only proper that parties are given opportunity to prove the disputed signatures in the relevant documents with reference to the admitted signatures. I do not find reason to interfere with the order of W.P.C.No.16161 of 2010 : 3 : learned Sub Judge. 3. It is then submitted by learned counsel that if the documents are sent to the expert for opinion it will take a long time to get the report. I direct learned Sub Judge to ensure that the expert gave his report as early as possible. Learned Sub Judge shall issue directions to the expert in that regard. With the above directions the writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-