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2022 DIGILAW 451 (KAR)

Cyril Rodrigues v. Edwin Rodrigues

2022-04-01

H.B.PRABHAKARA SASTRY

body2022
JUDGMENT 1. The present petitioner was defendant No.1 in O.S.No.476/2012, in the Court of learned II Addl.Civil Judge & J.M.F.C., Mangaluru, Dakshina Kannada, (hereinafter for brevity referred to as 'trial Court'), which was a suit filed for the relief of partition. The contention of the present petitioner, as defendant No.1, was that he is a legatee under an alleged Will dtd. 9/10/1986. After closure of evidence from his side, he made two applications i.e., IA.No.11 under Order XVIII Rule 1 and 2 read with Sec. 151 of Code of Civil Procedure, 1908 (hereinafter for brevity referred to as 'CPC') and another application IA.No.12 under Order XVI Rule 1 and 2 read with Sec. 151 of CPC, seeking to reopen his case and to summon the Sub-Registrar, Mangaluru Taluk, Mangaluru and the Tahsildar (Land Reforms), Secretary, X Land Tribunal, Mangaluru, to cause production of the Thumb register relating to the Will dtd. 9/10/1986 and production of alleged Certificate of Registration in Form-X, dtd. 20/3/1982. After inviting objections to the said applications, the trial Court by its order dtd. 13/1/2017, rejected both the IAs. Aggrieved by the same, the defendant No.1 in the trial Court is before this Court. 2. The respondents though served have remained absent. 3. Learned counsel for the petitioner in his argument submitted that though the petitioner has examined son of one of the attesting witness to the Will from his side, however, in order to show that the testator had executed the Will and to prove his signature, he needed the production of the register and has prayed for the same in the application, however, the trial Court without appreciating the said requirement, rejected his application. 4. The present petitioner as defendant No.1 in the trial Court is said to have taken a contention of alleged execution of the Will dtd. 9/10/1986, under which Will, he is claiming himself to be a legatee. Admittedly, the burden of proving the said Will is upon him. It is in that regard, admittedly he has already examined a witness who is said to be the son of one of the attesting witness to the Will. According to the petitioner, he wants to produce the thumb impression of the Executant to the Will also and would like to show that the thumb impression was of testator of the Will. 5. According to the petitioner, he wants to produce the thumb impression of the Executant to the Will also and would like to show that the thumb impression was of testator of the Will. 5. Needless to say that, even if it is proved that the alleged signature in the Will or the thumb impression in the register is of the alleged testator, but, that itself is not sufficient to prove the execution of the Will under Sec. 68 of Indian Evidence Act, 1872. However, it is not made known in the applications as to for what purpose the alleged production of documents are very much necessary or essential by a public office in the Original Suit. It is in that regard, since the trial Court has rejected the applications filed by the present petitioner in IA.Nos.11 and 12, I do not find any infirmity or error in the said order warranting any interference at the hands of this Court. Accordingly, the Writ Petition stands dismissed as devoid of merits.