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2017 DIGILAW 2724 (MAD)

P. Banumathi v. R. Krishnamoorthy

2017-08-18

T.RAVINDRAN

body2017
ORDER : 1. The revision petitioner/plaintiff has laid the suit for partition. The case of the plaintiff is being resisted by the respondents/defendants 2 to 6 by projecting a Will of their mother marked as Ex.B4. The plaintiff is however disputing the genuineness of the Will marked as Ex.B4. It is also found that the plaintiff has also marked certain documents in support of her case and according to the plaintiff, the documents marked as Exs.A8 and A9 contain the LTI of her mother and further, according to her, inasmuch she is disputing the genuineness of the Will marked as Ex.B4 said to have been executed by her mother, it has become necessary on her part to compare the LTI found in Ex.B4 with the admitted LTI of her mother found in Exs.A8 and A9 and therefore, seeking for a direction from the Court to send the same for expert opinion, she has laid the application in I.A.No.275 of 2014, under Section 45 of the Indian Evidence Act and Section 151 of the Code of Civil Procedure. 2. The said application was resisted by the respondents/defendants contending that only with a view to delay the proceedings, the present application has come to be preferred by the plaintiff and according to them, the suit has come to the stage of arguments and further, the LTIs found in Exs.A8 and A9 are not admitted and therefore, there is no need or no purpose would be served by sending the said documents for comparison with that of the LTI found in Ex.B4 by an expert and hence, the application deserves rejection. 3. The Court below accepted the case of the respondents/defendants and accordingly, dismissed the application preferred by the plaintiff. Aggrieved over the same, the present civil revision petition has been preferred. 4. The reason given by the Court below for dismissing the application preferred by the plaintiff is that the LTIs found in Exs.A8 and A9 are not admitted to be true by the defendants and further, the application having been laid by the plaintiff at the last stage of the suit, the application is not entitled for acceptance and accordingly, dismissed the same. 5. 5. The learned counsel for the revision petitioner/plaintiff contended that the findings of the Court below that the LTI of the plaintiff's mother found in Exs.A8 and A9 are not accepted to be true are patently erroneous and on the other hand, according to him, the defendants have clearly admitted during the course of evidence that the said documents contain the LTI of her mother and in this connection, he has also pointed out the particular portions of the admissions made by the defendants i.e., D.W.1 during the course of his cross-examination. A perusal of the same would go to show that D.W.1, during the course of cross-examination has admitted that the sale deed marked as Ex.A8 has been executed in favour of the plaintiff's husband by their mother and brothers and the LTI of his mother is found in the said document and he has also admitted the execution of Ex.A9. That apart, it is also found that D.W.1 has pleaded ignorance as to when actually his mother had executed the Will as put forth by the defendants. Further, D.W.1 has also admitted during the course of cross-examination that there is no objection for sending the Will marked as Ex.B4 for comparison by an expert. Therefore, it is found from the above facts that the defendants have not as such disputed the LTI of the mother found in Exs.A8 and A9, on the other hand, the plaintiff has seriously disputed the LTI of the mother found in Ex.B4. Therefore, in such circumstances, it is found that the plaintiff has been necessitated to send the document marked as Ex.B4 for comparison with the documents marked as Exs.A8 and A9 to ascertain whether the mother had really executed the Will in question, namely, Ex.B4. When the defendants having projected a defence to stifle the case of the plaintiff from claiming any partition in the suit properties, mainly on the Will said to have been executed by the mother marked as Ex.B4, it is found that the plaintiff would be justified and also entitled to call for an expert opinion as regards the genuineness of the LTI found in Ex.B4 by a comparison of the admitted LTI of her mother found in Exs.A8 and A9. In such view of the matter, the Court below is found to have erred in dismissing the application preferred by the plaintiff on the footing that the LTI of the mother found in Exs.A8 and A9 are not established to be admitted by the defendants. On the other hand, the position remains that the defendants through the mouth of D.W.1 has admitted the LTI of his mother found in Exs.A8 and A9 and therefore, it is found that the application laid by the plaintiff seeking for comparison of the LTI of the mother in the disputed document with the LTI of his mother in the admitted documents is justified and entitled for acceptance. 6. No doubt, the plaintiff has not come forward with the application at the earliest point of time, on the other hand, she has laid the application belatedly. However, on that score alone, in my considered opinion, considering the facts and circumstances of the case above discussed would not be the criteria for rejecting the application preferred by her. It is found that by making a comparison of LTIs as above discussed, no serious prejudice would be caused and on the other hand, if the plea of the defendants is true, their case would get further strengthened on getting the expert opinion with reference to the LTI found in Ex.B4. In view of the foregoing reasons, the impugned order cannot be sustained and it is liable to be set aside. 7. In conclusion, the fair and decreetal orders, dated 05.01.2017, passed in I.A.No.275 of 2014 in O.S.No.503 of 2008, on the file of the I Additional Sub Court, Madurai, are set aside and the application in I.A.No.275 of 2014 laid by the plaintiff is allowed. The Court below is directed to issue further directions in the matter for the completion of the task. Resultantly, the civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.