P T SHYLESH Vs. AMBIKAPATHI

JUDGEMENT

(1.) PETITIONERS are the plaintiffs and respondents to 3 are defendants 1 to 3 before the trial Court. In this order for convenience, the parties are referred to their status before the trial Court.

(2.) PLAINTIFFS':filed O. S. No. 4507/1998 against the defendants herein and others for partition and separate possession of their share in the plaint schedule properties. The defendants 1 and 2 in their written statement have taken a specific contention that the common propositor S. T. Ambekar during his lifetime bequeathed the schedule properties under a will dated 14-9-1987. The plaintiffs denied the execution of the will. After completion of evidence on both the side, the plaintiffs filed an I. A. under Order 26, Rule 10-A CPC for appointment of handwriting expert as a Court commissioner to compare the disputed signature on the will with that of the admitted signature of Ambekar. The trial Court under the impugned order rejected the application filed by the plaintiffs on two grounds. Firstly, on the ground that the burden of proving the will is on the defendants, therefore, the plaintiff need not take the trouble of sending the disputed signature on Ex. D2 to the handwriting expert. Secondly, by relying on a judgment by Kerala High Court in R. Saraswathy v. P. Bhavathy Ammal and another reported in AIR 1989 Kerala 228 that under Secs. 68, 69 and 71 a procedure is laid down with regard to the proof of will and therefore there is no need for sending the disputed signature for an handwriting expert.

(3.) HEARD arguments on both the side and perusal the entire writ papers.