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2013 DIGILAW 1658 (MAD)

A. R. Kaveri Achi v. CT. Kannan

2013-04-15

R.KARUPPIAH

body2013
JUDGMENT 1. This suit is filed for declaration and other reliefs. 2. The case of the plaintiff averred in the plaint is that the plaintiff is owning properties in India and Malaysia and some properties are acquired by the plaintiff by way of bequeath made by her sister C.T. Alagammai Achi under Will dated 25.01.1982 probate being granted by the High Court of Malaya at Kuala Lumpur. The first defendant is in no way connected with the plaintiff or his family in Petition No.S5-45-241 of 1987. Since the first defendant interfere with Damansara land situated at Malaysia, the plaintiff filed a suit in CS.No.S-22-907-2010 before the High Court of Malaya at Kuala Lumpur. In the said suit, the first defendant filed his affidavit and counter claim stating that CT.Alagammai Achi executed a will on 09.07.2002 and the first defendant has got probate issued in his favour by High Court of Malaya at Kuala Lumpur in petition No.S-32-466-2010 by using the same names as the original owners of the property. While the first defendant has got probate granted in his favour by relying on an alleged Will dated 09.07.2001 and also relied on five documents viz., (i)birth certificate dated 09.07.1959 bearing B&D No.108/59 and registration No.450 (ii)death certificate dated 22.04.2002 bearing B&D No.1806/1978 and Registration No.24 (iii)Will dated 09.07.2002 in Document No.109 of 2002 (iv)death certificate dated 22.12.2002 bearing B&D No.1760/2002 and Registration No.36 and (v)legal heirs certificate dated 09.01.2003 under Sl.No.3969/2003 as if all the above said documents were issued by the statutory authorities viz., D2 to D4. The plaintiff sent an application on 30.09.2010 to the office concerned i.e., D2 to D4. Whereas, the defendants 2 to 4 replied that the above said documents were not issued by them. Therefore, the above said five documents relied on by the first defendant are forged and fabricated documents and hence the plaintiff filed this suit before this Court for the reliefs stated supra. 3. Even though, necessary summons were duly served on all the four defendants, first defendant appeared through counsel but written statement not filed, the defendants 2 to 4 have not appeared either in person or through any counsel. Hence, this Court ordered defendants 2 to 4 set exparte. Even though, the suit was listed under the caption "undefended board" causes, the first defendant has not filed any application to condone the delay to receive the written statement. Hence, this Court ordered defendants 2 to 4 set exparte. Even though, the suit was listed under the caption "undefended board" causes, the first defendant has not filed any application to condone the delay to receive the written statement. Therefore, this Court referred the suit before the Additional Master-IV for recording evidence of plaintiff side. Before the Additional Master-IV also, the first defendant has not cross examined the plaintiff side witness. After recording the evidence of plaintiff side, the Additional Master-IV returned the case bundle to this Court for arguments along with oral and documentary evidence recorded on the side of the plaintiff. 4. At the time of arguments also learned counsel for first defendant not appeared. Therefore, heard the learned counsel for the plaintiff and perused the oral and documentary evidence adduced on the side of plaintiff. 5. The plaintiff herself deposed as PW1 and marked 19 documents as Exs.P1 to P19 to prove the case of the plaintiff. 6. The case of the plaintiff is that the documents namely Ex.P1 to Ex.P5 are forged and fabricated documents, to prove the same plaintiff is examined as PW1. Perused the above said documents. Ex.P11 and Ex.P12 are the applications applied for information under Right to Information Act (RTI Act) from the second defendant, Ex.P13 is the application applied for information under RTI Act from the fourth defendant, Ex.P14 is the reply given by the fourth defendant and Ex.P15 and Ex.P16 are the replies given by the second defendant Ex.P17 is another application sent by the plaintiff to the second defendant, for which the second defendant has given Ex.P18 reply. Ex.P19 is the internet downloaded copy of list of Sub Registrar Office in Tamil Nadu. 7. Admittedly, the plaintiff has not addressed to 3rd defendant regarding the alleged document No.3 -Will alleged to have been executed by Alagammai Achi dated 09.07.2002 registered with the Sub Registrar, Perambur as Document No.109 of 2002. The learned counsel for the plaintiff would submit that since there is no such Sub Registrar Office at the time of registration of the alleged Will, the plaintiff has not taken any steps to address to the said Sub Registrar Office. The plaintiff has not produced any documentary evidence except Ex.P19 internet down loaded copy of list of sub registration office to prove that on the date of alleged Ex.P3 Will, no such sub registration office at Perambur. The plaintiff has not produced any documentary evidence except Ex.P19 internet down loaded copy of list of sub registration office to prove that on the date of alleged Ex.P3 Will, no such sub registration office at Perambur. Except the interest oral testimony of PW1 no other witnesses examined to prove the above said fact. The plaintiff has not examined any Government officials to prove that no such office functioning at the time of Will. Plaintiff not send any notice to the above said address to prove his contention, Ex.P3 is admittedly registered document. Therefore the plaintiff has not proved that the above said Ex.P3 registered Will is forged or fabricated documents. 8. The plaintiff specifically pleaded that the above said document is forged by the first defendant and it is not registered under the 3rd defendant's office under the above said address. In the above circumstances, the plaintiff ought to have taken necessary steps to prove his contention. In the instant case, the plaintiff has failed to prove that the above said document is not registered in the alleged registered office and it is forged one. Therefore, Ex.P3 Will is not proved by plaintiff as forged document as claimed by the plaintiff. 9. With regard to the other documents viz., Exs.P1, P2, P4 and P5 birth certificate, death certificates and legal heir certificate are concerned, the officials/defendants 2 and 4 have clearly stated that the above said documents not issued by them. Further to prove the same, plaintiff has deposed and also marked Exs.P11 to P18 letter addressed to concerned Government officials and reply by them. On perusal of the above said documents clearly proved that D2 and D4 not issued the above said documents and D1 alone created the above said documents as contended by the plaintiff. First defendant has not cross examined the plaintiff witness namely PW1 and also failed to examine any witness on the defendant side to prove the fact that the above said documents namely Ex.P1, P2, P4 and P5 are genuine documents. Per contra, plaintiff has proved by adducing oral and documentary evidence that Ex.P1, P2, P4 and P5 are forged and fabricated documents as rightly contended by the learned counsel for the plaintiff. Per contra, plaintiff has proved by adducing oral and documentary evidence that Ex.P1, P2, P4 and P5 are forged and fabricated documents as rightly contended by the learned counsel for the plaintiff. Therefore, the plaintiff is entitled to relief of declaration and injunction in respect of documents Ex.P1, P2, P4 and P5 but the plaintiff is not entitled to any relief in respect of Ex.P3 document. 10. In the result, Exs.P1, P2, P4 and P5 are declared as forged and fabricated documents as null and void and non-est in law and also granted permanent injunction as prayed for in the plaint. With regard to Ex.P3 Will is concerned, the suit is dismissed in respect of the relief of declaration and permanent injunction. Hence, the suit is partly decreed. No costs.