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2003 DIGILAW 337 (MAD)

V. K. Muthusamy Gounder v. M. Thangavelu

2003-03-04

S.JAGADEESAN

body2003
Judgment :- By consent of both the learned counsel, the main Civil Revision Petition itself is taken up for final disposal. 2. The Civil Revision Petition is directed against the order and decree dated 28.10.2002 made in I.A.No. 68 of 2002 in O.S.No.1903 of 1999 passed by the Second Additional District Munsif, Coimbatore. 3. The petitioner is the defendant in O.S.No.1903 of 1999 on the file of Second Additional District Munsif, Coimbatore. The respondent herein filed the suit for declaration that the petitioner or transferees do not have any right to sell the property described in the schedule to the plaint. The claim of the respondent is based on a Will executed by one Kozhunthai Gounder. 4. It is the case of the respondent that the Will is in possession of the petitioner herein. To establish the claim of the respondent, the Will is a necessary document to be marked. Hence, an application was taken out by the respondent in I.A.No.68 of 2002 seeking direction to direct the petitioner herein to produce the Will. The petitioner disputed the possession of the Will. 5. However, learned Second Additional District Munsif, Coimbatore passed an order in I.A.No.68 of 2002, directing the petitioner herein to produce the Will. As against the said order, the petitioner has preferred this Civil Revision Petition. 6. It is the contention of the learned counsel for the petitioner that the petitioner is not in possession of the document. It is not open to the court to issue a direction, compelling the petitioner to produce the said document, when the petitioner is not in possession of the document. It is not known as to how the petitioner can produce the document before the Court. Hence, the order of the Court below cannot be sustained. 7. On the contrary, learned counsel for the respondent contended that in the pleadings, there is no specific denial by the petitioner with regard to the possession of the Will. Further, when the respondent claims the property under dispute through the Will, it is for the respondent to prove the Will and as such, the Will is a necessary document for the respondent to establish his claim. The petitioner, being in possession of the said document, refusing to produce the same in order to deprive the rights of the respondent. Hence, the order of the Court below is correct and no interference is called for. The petitioner, being in possession of the said document, refusing to produce the same in order to deprive the rights of the respondent. Hence, the order of the Court below is correct and no interference is called for. 8. This court carefully considered the above contentions of both the learned counsel. 9. Learned counsel for the petitioner represents that his client viz., the petitioner do not dispute the existence of the Will and the execution of the same by the testator. But, the petitioner is not in possession of the disputed Will and as such, the petitioner cannot be compelled to produce the documents which he is not possessed of. I see some force in the contention of the learned counsel for the petitioner. A person cannot be compelled to produce a document which he claims not possessed of. If the matter is looked in the above angle, the only salvation is that the respondent can be permitted to establish his case by secondary evidence, especially taking into consideration of the admission by the petitioner about existence of the Will and the execution thereon. 10. The short dispute is who is in possession of the Will. The fact remains that the disputed Will had been executed by the testator. In such circumstances, it is always open to the respondent to prove his claim by secondary evidence. 11. Accordingly, the order of the lower court, directing the petitioner herein to produce the Will is set aside and the Civil Revision Petition is allowed with the above direction. No costs. Consequently, the connected C.M.P.No.758 of 2003 is closed.