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2006 DIGILAW 2685 (MAD)

Dhamodaran & Others v. Chandrasekaran & Others

2006-10-10

S.RAJESWARAN

body2006
Judgment :- (Revision Petition filed against the order dated 10.9.2003, passed in I.A.No.247/2003 in O.S.No.104/1996, on the file of the District Munsif Court, Polur.) This Revision Petition has been filed against the order dated 10.9.2003, passed in I.A.No.247/2003 in O.S.No.104/1996, on the file of the District Munsif Court, Polur. 2. Defendants 1 to 4 in O.S.No.104/1996 on the file of the District Munsif Court, Polur, Tiruvannamalai District are the revision petitioners. 3. Respondents 1 to 4 herein filed O.S.No.104/1996 for a permanent injunction restraining the defendants from creating any encumbrance with regard to the suit schedule property and also for other reliefs. The entire case of the plaintiffs rested on the Will dated 15.10.1989 executed by one Margabandu Mudaliyar, the grandfather of the plaintiffs. 4. The first revision petitioner/first defendant filed a written statement contending that the Will dated 15.10.1989 which is the subject matter of the suit was not executed by the said Margabandu Mudaliyar and therefore the will is a rank forgery. 5. Pending suit the revision petitioners as defendants filed an application in I.A.No.247/2003 under Order 26 Rule 10(A) of C.P.C. to appoint an advocate commissioner to get the expert opinion as well as the handwriting opinion by comparing the signatures of Margabandu Mudaliyar which is available from the registered Will dated 12.10.1989 with that of the disputed Will dated 15.10.89 and also comparing the handwriting and contents of the entire document available from the original registered sale deed dated 25.6.82 with that of the handwriting and contents of the disputed Will dated 15.10.89. This I.A. was seriously resisted by the plaintiffs by filing a counter affidavit wherein it was stated that the signature of Margabandu Mudaliyar found in the alleged Will dated 12.10.89 itself differs from page to page and place to place. 6. The trial Judge by an order dated 10.9.2003 dismissed I.A.No.247/2003 on the ground that as both the signatures are disputed, the two disputed signatures could not be compared with each other. Aggrieved by the said order dated 10.9.2003, the above Civil Revision Petition has been filed under Article 227 of the Constitution of India. 7. Heard both the learned counsel for the revision petitioners and the respondents. I have also gone through the documents filed by them. 8. Aggrieved by the said order dated 10.9.2003, the above Civil Revision Petition has been filed under Article 227 of the Constitution of India. 7. Heard both the learned counsel for the revision petitioners and the respondents. I have also gone through the documents filed by them. 8. The learned counsel for the revision petitioners submitted that the trial court is wrong in coming to a conclusion that the signature in the Will dated 12.10.1989 is also disputed, when P.W.1 herself in the cross-examination admitted that the Will dated 12.10.1989 was executed by her grandfather Margabandu Mudaliar. 9. Per contra, learned counsel for the respondents submitted that the Will dated 12.10.1989 was clearly disputed in the counter filed in I.A.No.247/2003 and therefore any disputed signature could be compared only with the signature admitted by both parties. 10. I have considered the rival submissions. 11. From the counter filed by the 4th respondent herein in I.A.No.247/2003, it is very clear that even the Will dated 12.10.1989 is not wholly admitted by the plaintiffs in the suit as it was stated that the signature of the Margabandu Mudaliar found in the alleged Will dated 12.10.1989 itself differs from page to page and from place to place. 12. Therefore I do not find any illegality in the order of the trial court wherein the trial Judge held that only when the signature of the said Margabandu Mudaliar is admitted by the parties in any other document, then only comparison is possible with the admitted signature. That apart, it is for the plaintiffs to prove the Will dated 15.10.1989 as the entire case of the plaintiffs is resting on that Will. The revision petitioners as defendants have already filed written statement disputing the Will dated 15.10.89 by stating that it is a rank forgery and Margabandu Mudaliar never executed any Will dated 15.10.89. If that be so, it is for the plaintiffs to prove the Will dated 15.10.89 to establish their case. 13. Therefore, I do not find any illegality in the order of the trial court dated 10.9.2003 which would cause grave prejudice to the revision petitioners warranting interference under Article 227 of the Constitution of India. 14. Therefore the C.R.P. is dismissed. No costs. C.M.P.No.2443/2005 is also dismissed. 15. 13. Therefore, I do not find any illegality in the order of the trial court dated 10.9.2003 which would cause grave prejudice to the revision petitioners warranting interference under Article 227 of the Constitution of India. 14. Therefore the C.R.P. is dismissed. No costs. C.M.P.No.2443/2005 is also dismissed. 15. However, since the suit is of the year 1996, I direct the trial court to dispose of the suit on merits in accordance with law within a period of one month preferably on day-to-day basis from the date of receipt of copy of this order.