Kerala High Court
B.Kamaladevi vs S.H.Ajitha on 22 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 22ND DAY OF MARCH 2022 / 1ST CHAITHRA, 1944
OP(C) NO. 1701 OF 2021
AGAINST THE ORDER DATED 12.8.2021 IN I.A 3/2020 IN O.S
313/2011 ON THE FILES OF THE PRINCIPAL SUB COURT,
THIRUVANANTHAPURAM
PETITIONERS/PLAINTIFFS:
1 B.KAMALADEVI
D/O. LATE BHANUMATHI, KESHAVEEYAM,
IDAVAKKODU, SREEKARYAM P.O,
THIRUVANANTHAPURAM.
2 PRABHAKUMARI
D/O. LATE BHANUMATHI, 8/960,
UDHAYADHRI, KALLAMBALLI, SREEKARYAM P.O,
THIRUVANANTHAPURAM.
3 RAMABHAI
D/O. LATE BHANUMATHI, 8/654,
ILLAMKULAM, SREEKARYAM P.O,
THIRUVANANTHAPURAM.
BY ADVS.
M.R.ANANDAKUTTAN
M.A.ZOHRA
MAHESH ANANDAKUTTAN
RESPONDENTS/DEFENDANTS:
1 S.H.AJITHA
SOUPARNIKA, KALLAMBALLI JUNCTION,
MEDICAL COLLEGE,
THIRUVANANTHAPURAM, PIN - 695011.
2 PARVATHY (MINOR)
REPRESENTED BY MOTHER, S.H. AJITHA,
SOUPARNIKA, KALLAMBALLI JUNCTION,
MEDICAL COLLEGE, THIRUVANANTHAPURAM,
PIN - 695011.
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3 VIVEK (MINOR)
REPRESENTED BY MOTHER,
S.H. AJITHA, SOUPARNIKA,
KALLAMBALLI JUNCTION,
MEDICAL COLLEGE,
THIRUVANANTHAPURAM, PIN - 695011.
4 B. LEELAKUMARI
KARIYAM, SREEKARYAM P.O,
THIRUVANANTHAPURAM,
PIN - 695017.
BY ADV R.GOPAN
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
22.03.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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O.P.(C)No.1701 of 2021
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JUDGMENT
This is original petition filed under Article 227 of
the Constitution of India by the petitioners, who are
additional plaintiffs in O.S No.313 of 2011 pending before the
Principal Sub Court, Thiruvananthapuram. The petitioners
are aggrieved in the matter of dismissal of I.A.No.3 of 2020
by the learned Sub Judge as per order dated 12.08.2021.
2. Heard the learned counsel for the petitioners
as well as the respondents.
3. It is argued by the learned counsel for the
petitioners that a Will executed by one Sri.K.Suresh Kumar in
favor of his wife and children is the subject matter of dispute
in this case. According to the learned counsel, the evidence
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adduced would suggest doubt regarding the genuineness of
the Will and signature thereon. As such, the genuineness of
the Will is in the midst of doubts and therefore, for getting
clarification regarding the genuineness of the signature in
the alleged Will, examination of the signature in the Will with
that of the admitted signatures of Sri.K.Suresh Kumar is
necessary.
4. Then, the learned counsel was asked to
justify, filing of this application at much belated stage, after
posting the case for judgment. At this juncture, it is
submitted by the learned counsel that then the petition may
be allowed on terms.
5. Per contra, the learned counsel appearing
for the contesting respondents would submit that after the
death of K.Suresh Kumar, his wife and children are trailing to
survive and they are not in a position even to get back the
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compensation amount relating to the plaint schedule
property, in view of pendency of this original suit. He
submitted further that the genuineness of the Will can be
decided based on the substantive evidence already adduced
and the opinion evidence now sought for is not required for
deciding the genuineness of the Will. Therefore, a belated
application filed for getting opinion evidence was dismissed
rightly by the learned Munsiff and the same does not require
any interference.
6. In view of the rival arguments, I have
perused the petition, which has been produced as Ext.P2
herein. It is prayed therein that Ext.B5 Will along with the
signatures in Exts. X1, X1(a) and X2 to be forwarded to the
Forensic Science Laboratory for comparison of the signature
in Ext.B5 with that of the other signatures. It is argued by
the learned counsel for the petitioners that documents X1,
X1(a) and X2 produced by PW2 are the registered sale
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deeds wherein, the signature of K.Suresh Kumar could be
found. The proceedings before the Sub Court,
Thiruvananthapuram in O.S.No.313 of 2011 is also placed by
the learned counsel for the contesting respondents for
perusal. The learned counsel submitted that, after posting
the case for judgment, this petition was filed along with a
petition to re-open the evidence with a view to stall the
proceedings in a suit originally instituted in the year 2011.
7. As per the impugned order, the learned Sub
Judge observed that the petition was filed at a belated
stage. He also observed that substantive evidence adduced
in this matter is sufficient to decide the genuineness of the
Will and the proof of signature in the Will by getting opinion
evidence is not required to decide genuineness of the Will.
8. On scrutiny of the petitioners case as
discussed, it is discernible that proof of a Will is the duty of
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the propounder and for which, the mandate of Section 63 of
the Indian Succession Act and Section 68 of the Evidence
Act are to be followed. In such cases, opinion evidence
cannot substitute substantive evidence otherwise.
9. Therefore, a petition filed at a much belated
stage for getting opinion evidence, could not be held as one
with bonafides.
10. In view of the matter, the learned Sub Judge
rightly dismissed the application and the same needs no
interference as the same does not suffer from any
arbitrariness, perversity or patent illegality.
Therefore, this original petition fails and
accordingly dismissed.
Sd/-
A.BADHARUDEEN, JUDGE
rkj
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APPENDIX OF OP(C) 1701/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE AMENDED PLAINT IN O.S
NO. 313/2011 ON THE FILES OF THE
SUBORDINATE JUDGE'S COURT,
THIRUVANANTHAPURAM.
Exhibit P2 TRUE COPY OF THE IA 3/2020 FILED IN
O.S 313/2011 ON THE FILES OF THE
SUBORDINATE JUDGE'S COURT,
THIRUVANANTHAPURAM.
Exhibit P3 TRUE COPY OF THE OBJECTION FILED BY
THE RESPONDENT IN IA.3/2020 IN
O.S.313/2011.
Exhibit P4 TRUE COPY OF THE ORDER DATED
12.08.2021 IN I.A 3/2020 IN
O.S.313/2020 OF THE SUB COURT,
THIRUVANANTHAPURAM.
