M. KRISHNAMMAL Vs. ADDITIONAL MUNSIFF, RENT CONTROL COURT,

JUDGEMENT

(1.) THIS petition is in challenge of Exts.P4 and P5, orders refusing to send Ext.P1, letter to the expert for opinion as to the handwriting and signature and to reopen the case for the said purpose. Plaintiff in O.S. No. 104 of 2009 of the court of learned Additional Munsiff (Rent Control Court), Thiruvananthapuram is the petitioner before me. She claimed that the suit property which is the self acquired property of her husband, Arumughan Pillai belonged to her as per registered Will No. 66 of 1978 executed by him and on the testator dying on 05.04.1998. On petitioner learning that respondent No. 1, her daughter as if she is a co -owner of the undivided property has executed settlement deed No. 1393 of 2001 purporting to transfer her 1/9th share in the property, she filed the suit for cancellation of that settlement deed and to enforce her right under Will No. 66 of 1978. Respondents of course disputed genuineness of the Will. Parties went into evidence. When petitioner was in the box she wanted to prove a letter dated 18.10.1999 allegedly sent by respondent No. 1 to her which according to the petitioner made reference to the disputed Will. The purpose was to show that even as in the year, 1999 respondent No. 1 was aware of the existence of Will No. 66 of 1978. But that letter was not allowed to be marked in evidence since it was objected by respondents. When respondent No. 1 was in the box and was being examined as DW1, she was confronted with the letter but she denied it. It is thereon that petitioner wanted the letter to be sent to the expert for opinion and reopen the case for the said purpose. Learned Munsiff dismissed those applications. It is contended by learned counsel that proof of letter was relevant and necessary for a decision of the controversy involved and to show that version of respondent No. 1 that she was unaware of existence of the Will is untrue. It is pointed out by learned counsel that learned Munsiff has even made an observation in Ext.P4, order that "further the genuinity of the Will is not proved by the plaintiff herein".

(2.) I have gone through Ext.P1, letter allegedly sent by respondent No. 1 to petitioner. There, reference is to a Will allegedly executed by the father (as told by the mother) bequeathing property in favour of the daughter and the sender of the letter wanted the original Will to be given to her for her understanding. I must bear in mind that as per Will No. 66 of 1978 claim of petitioner is that entire property is bequeathed to her. In this proceeding I am not at the question whether learned Munsiff was correct in disallowing marking of the letter when petitioner was in the box. I leave that question there. What is relevant is not whether respondent No. 1 was aware of existence of Will No. 66 of 1978 during the time Ext.P1, letter is allegedly written but whether Will No. 66 of 1978 is the last Will and testament of the deceased Arumughan Pillai. That is a matter which petitioner has to prove by appropriate evidence as provided under the Evidence Act and the Succession Act. In that view I am not inclined to think that Ext.P1 should be sent to the expert for opinion which would only delay further proceedings in the suit. But any observation made by the learned Munsiff as to genuineness of the Will or sufficiency of evidence let in by the petitioner in Ext.P4 was unwarranted for disposal of Ext.P2, application and, learned Munsiff shall decide the suit untrammelled by any such observation. I also make it clear that if necessary it will be open to the petitioner to challenge the correctness of the impugned orders or refusal of learned Munsiff to mark the letter when petitioner was in the box in the appeal if any arising from the judgment and decree of the learned Munsiff if petitioner is otherwise entitled to that course, notwithstanding any observation made herein or the dismissal of this petition. In the light of what I have stated I do not find reason to interfere with Exts.P4 and P5, orders.