The defendant is the Civil Revision Petitioner before this Court, challenging the order in I.A.No.996 of 2010 in O.S.No.1176 of 2009, dated 20.12.2011, on the file of the learned I Additional District Munsif Court, Salem.
2.The case of the plaintiff is that he has filed the suit in O.S.No.1176 of 2009 before the learned I Additional District Munsif, Salem, for declaration and for permanent injunction against this petitioner/defendant. It is the case of the plaintiff is that both the plaintiff and the defendant are the brothers and their parent names are Mr.Kulandaisamy and Tmt.Valliammal. During the life time of Mr.Kulandaisamy, the father of the plaintiff has purchased the suit property on 03.10.1991.
3.Pursuant to the purchase of the said suit schedule of property, all the documents namely patta, house tax and electricity connection and water connection were muted in favour of the plaintiffs father Mr.Kulandaisamy. During the life time of Mr.Kulandaisamy, he was hale and healthy and he executed a Will out of love and affection in favour of the plaintiff in respect of the suit property on 02.04.2007 and thereafter, on 08.06.2007, the plaintiffs father Mr.Kulandaisamy was died.
4.When the Will was executed by the deceased Kulandaisamy on 02.04.207 which is the last Will and it was came on effect immediately on the date of death of Mr.Kulandaisamy on 08.06.2007 and hence, the said Will was acted upon. The title of the said suit schedule of property was changed in favour of this plaintiff and immediately, the plaintiff was taken the possession of the suit property and he is in actual possession and enjoyment of the same. The Will executed on 02.04.2007 by Mr.Kulandaisamy was known to the defendant and his mother Valliammal.
5.Since the suit schedule of properties are the self-acquired properties of the plaintiff and the deceased Kulandaisamy is the absolute owner of the suit properties and after the death of Kulandaisamy, this plaintiff legally entitled the property and have every right, title and interest over the suit properties. Knowing fully well about the Will, executed by the Kulandaisamy on 02.04.2007, the defendant has denying the title of the plaintiff to the suit properties and oftenly attempted to interfere into the suit properties and claiming that he had share in the suit schedule of property. Therefore, the plaintiff has filed the suit for declaration and for permanent injunction.
6.The defendant has filed his written statement denying the execution of the Will, since the Will dated 02.04.2007, the father of the defendant Kulandaisamy was not at all executed and denied the Will and also the possession taken by the plaintiff. After the death of the plaintiffs father Kulandaisamy, the mother of the defendant Valliammal has executed the settlement deed in favour of the defendant on 17.09.2008 in registered as Document No.3611 of 2008, on the file of the Sub-Registrar Office, Salem West Joint-I, Salem. After the execution of settlement deed, the said settlement deed was acted upon and the defendant was taken upon the possession of the property.
7.The case of the defendant is that after execution of the settlement deed on 17.09.2008 on the instigation of others, the defendants mother Valliammal has executed a cancellation deed on 19.12.2008 in Document No.4662 of 2008, on the file of the Sub-Registrar Office, Salem West Joint-I, Salem. Therefore, challenging the said cancellation deed dated 19.12.2008, this defendant has filed the suit in O.S.No.890 of 2009, on the file of the learned I Additional District Munsif, Salem, for declaration of the suit property executed by Valliammal is null and void and the suit is also pending. Now, the plaintiff has created the alleged Will and filed the suit. Therefore, the suit itself is not maintainable and hence, the defendant has prayed for dismissal of the suit.
8.While pendency of the above suit, the petitioner/defendant has filed application under
Section 45 of the Evidence Act in I.A.No.996 of 2010 to pass an order to send the plaint document No.2 along with the admitted signature of the deceased Kulandaisamy to the hand writing expert and get the expert opinion report for the said plaint document No.2 (WILL) regarding the signature of the deceased Kulandaisamy.
9.In the petition filed by the petitioner/defendant alleged that the suit in O.S.No.1176 of 2009, the Will is vital to prove that the signature found in the will dated 02.04.2007 not belongs to the defendants father and he wants to prove the same through the Forensic Laboratory.
10.It is the further case of the petitioner/defendant is that the plaintiff has fabricated and forged document and the plaintiff has filed the same in order to make illegal gain by fabricating document and in order to coerce, since the plaintiff is the Government servant and indulging the false claim and there is a chance of manipulating those documents by the plaintiff. Therefore, he wants to send the said document to hand writing expert to get expert opinion for the Will.
11.Considering the both side cases, the learned I Additional District Munsif, Salem, by order dated 20.12.2011 dismissed the application by stating that on the ground by saying that though the defendant wants to compare the signature of the deceased Kulandaisamy found in the Will dated 02.04.2007, the defendant has not filed any other document to found the signature of the deceased Kulandaisamy. Therefore, the learned Judge has dismissed the said application. Challenging the said order, the present Civil Revision Petition has been filed for the aforesaid prayer.
12.I heard Mr.D.Shivakumaran, learned counsel appearing for the petitioner, there is no representation for the respondent and perused the entire records.
13.It is admitted fact that the plaintiff has filed the present suit in O.S.No.1176 of 2009, based on the Will dated 02.04.2007 alleged to be executed by the father of the plaintiff and the defendant.
14.It is the case of the defendant is that the signature found place in the Will dated 02.04.2007 itself is not belongs his father deceased Kulandaisamy. Therefore, he wants to send the WILL to the hand writing expert for getting expert opinion. When the suspicion arose in respect of the signature found in the Will, the Court must have verified and the Court itself should refer the matter to the hand writing expert for getting the signature to compare the signature.
15.Admittedly, the defendant has filed the application in I.A.No.996 of 2010 for comparison of the signature under
Section 45 of the Evidence Act.
Section 45 of the Evidence Act says as follows:
45.Opinions of experts.- When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identify of handwriting [or finger impression], the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting] [or finger impressions] are relevant facts.
Such persons are called experts.
16.The order of the learned Judge by dismissing the application only on the ground by saying that the defendant has not produced any other documents for comparison of the signature. The Court must have looked into these type of petition, since it is only piece of evidence to the defendant to prove his case, but the defendant has raising the ground saying that the signature found in the Will dated 02.04.2007 which is vital document in the present suit, it is not belongs to the deceased Kulandaisamy.
17.Apart from this, if the opinion of the expert in respect of signature found in the Will dated 02.04.2007 will be received by the Court below, it is very easy to the Court to decide the matter at an early point of time. But the learned Judge without applying his mind on the only ground that the petitioner has not produced any other documents for comparison in the Will dated 02.04.2007. It is the duty bound to the Court to direct the defendant, who is the petitioner in the application to produce any other document for comparison of the signature, but without doing the same, dismissed the application which is totally against the law and natural justice. Therefore, this Court warranting interference in the order passed by the Court below in I.A.No.996 of 2010 in O.S.No.1176 of 2009 and accordingly it is liable to be set aside.
18.In the result:
(a)the Civil Revision Petition is allowed, by setting aside the order passed in I.A.No.996 of 2010 in O.S.No.1176 of 2009, dated 20.12.2011, on the file of the learned I Additional District Munsif Court, Salem;
(b)the petitioner/defendant is directed to produce admitted signature documents in respect of the deceased Kulandaisamy, within a period of six weeks from the date of receipt of a copy of this order. The trial Court is directed to send the document to hand write expert and get expert opinion report in respect of document No.2 (WILL) on the admitted signature documents produced by the petitioner/ defendant;
(c)on receiving the expert opinion report, the trial Court is directed to dispose the suit in O.S.No.1176 of 2009 within a period of three months thereafter without giving any adjournments to either parties and both the parties are directed to give their fullest co-operation for early disposal of the suit. No costs. Consequently, connected miscellaneous petition is closed.