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2013 DIGILAW 273 (MAD)

Lalitha v. Ponnuswamy

2013-01-10

G.RAJASURIA

body2013
ORDER 1. C.R.P(NPD)(MD)No.39 of 2012 has been filed to get set aside the order dated 10.03.2011 passed in I.A.No.37 of 2010 in A.S.No.99 of 2007 by the learned I Additional Subordinate Judge, Nagercoil. 2. C.R.P(NPD)(MD)No.40 of 2012 has been filed to get set aside the order dated 10.03.2011 passed in I.A.No.38 of 2010 in A.S.No.99 of 2007 by the learned I Additional Subordinate Judge, Nagercoil. 3. C.R.P(NPD)(MD)No.41 of 2012 has been filed to get set aside the order dated 10.03.2011 passed in I.A.No.42 of 2010 in A.S.No.99 of 2007 by the learned I Additional Subordinate Judge, Nagercoil. 4. Heard both sides. 5. A recapitulation and resume of the facts absolutely necessary and germane for the disposal of these Civil Revision Petitions would run thus: The suit was filed by the respondents/plaintiffs seeking partition arraying the propositus of the revision petitioners as the original defendant. The suit was decreed as against which appeal was filed by the original defendant. Pendentelite, the original defendant died and his legal representatives/revision petitioners were brought on record. While so, the revision petitioners filed I.A.Nos.37, 38 and 42 of 2010, seeking the following reliefs: I.A.No.37 of 2010: "For the reasons stated in the accompanying affidavit, it is most humbly prayed that the Honourable Court be pleased to appoint an Advocate Commissioner for transmitting the Exts.B15 will deed dated 25.6.1987 for comparison of the disputed signatures of the testator Subbian alias Ambrose along with his admitted signatures found in sale deed No.1183/1981 dated 27.4.1981, Book No.1, Vol.842, Pages 302 to 305 in the file of the Sub Registrar, Eraniel, by calling for the same to be produced before this court in this appeal suit and get an expert opinion of an authorised hand writing expert in the interests of law, justice and equity." (extracted as such) I.A.No.38 of 2010: “TAMIL” (extracted as such) I.A.No.42 of 2010: "TAMIL” 1. 25.6.1987 - Original Will Deed executed by Ambrose in favour of deceased Rajamony. 2. 15.6.1992 - Death Certificate." (extracted as such) The said applications were resisted. Whereupon, the lower appellate Court dismissed all the above applications observing that those applications were belatedly filed and there is nothing to indicate that such obtention of expert opinion relating to the genuineness of the Will for the disposal of the appeal, was necessary. Further, the learned Judge also thought that the additional documents also could not be allowed to be filed. Further, the learned Judge also thought that the additional documents also could not be allowed to be filed. As such, the learned Judge thought of proceeding with the matter without the additional evidence and disposing of the appeal. 6. Being aggrieved by and dissatisfied with the same, these three Civil Revision Petitions have been filed on various grounds. 7. The learned Counsel for the revision petitioners would submit that no doubt, based on the Will dated 25.06.1987, the proceedings were initiated by the original defendant, but that was dismissed as against which Civil Miscellaneous Appeal was filed and that was also dismissed giving liberty to prove the Will in the way known to law before the Court which was seized of the suit for partition. However, before obtaining the certified copies and filing the same before the Court which was seized of the partition suit, the suit itself was decreed ordering partition observing that the Will dated 25.06.1987, was not proved; as on the date of the lower Court ordering partition, there was only the certified copy of the Will dated 25.06.1987 available and the witnesses were not examined to prove the said Will because the witnesses to the said Will also died; whereupon only, the lower appellate Court was approached by the legal representatives of the original defendant seeking permission of the Court to permit those legal representatives to take the assistance of a hand writing expert to prove the testator's signature and also to file the additional documents to prove their possession, but the lower appellate Court unfortunately dismissed all those applications for no good reasons warranting interference in revision. 8. Whereas the learned Counsel for the respondents 1, 3 and 4, in a bid to slap down and torpedo the arguments as put forth on the side of the revision petitioners, would pyramid his arguments thus: The revision petitioners and the original defendant slept over the wheel and slept at the switch and allowed to grow grass under their feet and even opportunity was given by this Court while disposing of the earlier Civil Miscellaneous Appeal to prove the Will in the partition suit, but that was also not utilised by them. In such a case, the lower appellate Court appropriately and appositely, legally and correctly adhering to the provisions of law and Order 41 Rule 27 of the Code of Civil Procedure, dismissed all the three applications warranting no interference by this Court. 9. The point for consideration is as to whether there is any illegality in dismissing all the three applications and thereby depriving the legal representatives of the original defendant to prove the Will dated 25.06.1987 and also by taking the assistance of a hand writing expert? The Point: 10. The above narration of facts would unambiguously and unequivocally demonstrate and display, exemplify and convey that there were laches on the part of the original defendant as well as his legal representatives. But the stark reality should be seen. The order was passed by this Court in C.M.A.No.176 of 2002 dated 30.01.2006, granting liberty to the petitioners herein to prove the Will dated 25.06.1987 before the Court which was seized of the partition suit. But the fact remains that the decree in the partition suit was passed on 28.04.2006. 11. The learned Counsel for the respondents 1, 3 and 4 would try to convince this Court by pointing out that sufficient time was taken to obtain the original Will from the Probate Court and also the certified copies of the order passed by this Curt and in the meanwhile, the partition decree itself was passed. The explanation may not be acceptable if the law is strictly interpreted ignoring the realities, but the Court has to see the realities. At times, enormous time is taken for obtaining the original document from one Court and for producing the same before the other Court and these are all time consuming factors and obviously, the communication gap between the parties and the Advocate could also be taken note of and in a pragmatic manner, the matter has to be approached and that too, when the revision petitioners are persisting in their stand to prove the registered Will in the wake of challenge, in accordance with Sections 68 and 69 of the Indian Evidence Act. 12. 12. A mere running of the eye over the order of the lower appellate Court would demonstrate and display that it simply dismissed all the three applications, because there were laches on the part of the revision petitioners in pursuing the matter and over and above that, I could see no valid reason on the part of the lower appellate Court in dismissing all the three applications. 13. Hence, I am of the considered view that proving the Will and establishing one's right is a valid right and because of the delay aspect alone, such persons should not be deprived of their right. The opposite party should always be compensated in terms of money. Here, the revision petitioners are facing with an obstacle to the effect that both the testators died and in such a case, in order to prove the signature of the testator, they wanted to take the assistance of a hand writing expert. In such a case, if the lower appellate Court also deprived the right of the revision petitioners, then it would amount to perpetually debarring the revision petitioners from their right. 14. In view of my ratiocination adhered to by me supra, I am of the considered view that subject to payment of costs of Rs.5,000/-(Rupees Five Thousand only) payable by the revision petitioners to the respondents/plaintiffs within a period of one week from the date of receipt of a copy of this order, all the three applications shall stand allowed and the lower appellate Court shall do well to see that the Advocate Commissioner is appointed with the following mission: (a) To carry the relevant documents in connection with this case personally in a sealed cover; (b) and produce the same before the Forensic Expert; (c) leave it in his custody under his acknowledgement for as many days as the Forensic Expert may require; (d) collect the record from the Forensic Expert on the day as may be fixed by him; (e) bring it back and lodge it with the Court. The Forensic Expert is directed to complete the examination in any event within a period of one week after the depositing of the same by the Advocate Commissioner with him. After getting the report, both the parties shall be given due opportunity to file objections if any to the report of the Expert. The Forensic Expert is directed to complete the examination in any event within a period of one week after the depositing of the same by the Advocate Commissioner with him. After getting the report, both the parties shall be given due opportunity to file objections if any to the report of the Expert. Thereafter, after entertaining the additional evidence and after hearing both sides, the lower appellate Court shall dispose of the appeal as expeditiously as possible as per law. The point is answered accordingly. 15. On balance, C.R.P(MD)Nos.39 to 41 of 2012 are allowed to the extent indicated above. Consequently, the connected Miscellaneous Petitions are closed. No costs.