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2013 DIGILAW 1282 (MAD)

Devankantha v. T. K. M. Kalyanaraman

2013-03-07

K.RAVICHANDRA BAABU

body2013
Judgment :- 1. This Civil Revision Petition is filed against an order passed in I.A. No. 90 of 2011 in O.S. No. 325 of2009 on the file of the District Munsif, Gudiyatham whereby the application filed by the petitioner to send for a document viz., the will dated 15.7.1978 for expert opinion is rejected. 2. Though notice was ordered to the respondent he has not chosen to appear before this court either in person or through counsel. However his name is printed in the cause list. Heard the learned counsel for the petitioner . 3. The respondent herein filed the suit in O.S. No 325 of 2009 seeking for the relief of declaration and permanent injunction against the petitioner herein and 17 others. The petitioner who is the first defendant in the said suit filed written statement and contested the same. During the pendency of the said suit, the petitioner filed I.A. No. 90 of 2011 under Order 26 Rule 10(A) of CPC for sending the disputed will dated 15.7.1978 for comparison of the signatures found in the said will along with the admitted signatures of one late T.K.M. Ekambaram. The petitioner in the affidavit filed in support of the said application contended that he had already taken the defence in the written statement that the said T.K.M. Ekambaram who is the father in law of the petitioner and the grand father of the respondent/plaintiff never executed any will in favour of the plaintiff's father T.E. Mohanam at any point of time during his life time. Therefore, according to the petitioner, the said will is a forged, fabricated and concocted document by the respondent's father . The allegation of the petitioner is that the signatures contained in the said will would certainly prove that it is not that of T.K.M. Ekambaram, if it is compared with the admitted signatures of the said person found in other family documents. Therefore, he sought for a direction from the Court to send the said Will dated 15.7.1978 for comparison of the signatures found in it with the admitted signatures available in the family documents . The court below rejected the said application only on the reason that the petitioner has not produced any document wherein the admitted signatures of the said T.K.M.Ekambaram is available for sending the same for comparison with the disputed signatures found in the said will. The court below rejected the said application only on the reason that the petitioner has not produced any document wherein the admitted signatures of the said T.K.M.Ekambaram is available for sending the same for comparison with the disputed signatures found in the said will. Therefore, the Court below rejected the application by stating that the petitioner has filed the application without any doucment having admitted signatures and hence the application itself is not maintainable. 4. Learned counsel for the petitioner has now placed before this Court a xerox copy of the first page of SSLC Certificate issued to one E. Kalaivani wherein her father's name was shown as T.K.M. Ekambara Mudaliar and his signature is also found therein. Learned counsel for the petitioner submits that the petitioner was able to get the said document only after the dismissal of the said I.A. and therefore the same is placed before this Court. The Court below has rejected the application only on the reason that the petitioner has not produced any document wherein the admitted signatures of the said T.K. Ekambaram are found. Therefore, it is for the petitioner to place the said document before the Court below and if the respondent/plaintiff admits that the signatures found in the said document is that of T.K.M. Ekambaram Mudaliar, then the petitioner herein is entitled to send the said document along with the disputed will dated 15.7.1978 for comparison of the signatures. 5. Hence, in order to render substantial justice to the parties, I set aside the order passed by the Court below and remit the matter back to the trial Court so as to enable the petitioner to produce the said Secondary School Leaving Certificate of one E. Kalaivani, and if the signature found in the said document is admitted to be the signature of the said T.K. Ekambara Mudaliar, then it is for the Court below to send the said document along with the disputed will dated 15.7.1978 for comparison of the signatures. 6. Accordingly, the Civil Revision Petition is allowed and the matter is remitted back to the trial Court for disposal of the said application in the light of the observations as stated supra. The trial court shall dispose of the said application within a period of 30 days from the date of receipt of copy of this order. Consequently, the connected M.P. is closed. No costs.