SUSHEELA Vs. DEEPIKA

JUDGEMENT

(1.) The plaintiff, in a suit for partition, filed an application to send the "will" set up in defence for examination by an expert to substantiate his allegations in the rejoinder filed. Admittedly the plaint schedule property belonged to late Madhavan. The defendant in the written statement contended that Madhavan had executed a "will" bequeathing the plaint schedule property in his favour. In answer to the said defence, the plaintiff filed the rejoinder challenging the execution of the "will". The plaintiff also disputed the signature of the testator found in the "will" and, inter alia, contended that the signature is a forged one. The application has been dismissed by the court below relying on the decision in R.Saraswathy Vs. Bhavathy Ammal & another, 1988 2 KerLT 736 holding that opinion of the expert as to the identity of the signature is not a relevant fact. Challenging the said order the plaintiff filed this original petition under Article 227 of the Constitution of India.

(2.) Heard the learned counsel for the petitioner and the learned counsel for the respondents.

(3.) The learned counsel for the petitioner, relying on the decision of the Division Bench of this Court in Sumangala T.Pai Vs. Sundaresa Pai, 1991 1 KerLT 246 , submits that if there is anything suspicious in the signature, evidence of an attester of the "will" can be contradicted by an expert opinion. In fact, in the above said decision, the Division Bench of this Court disagreed with the view taken in Saraswathy's case . However, this Court notice that above Division Bench decision had been reversed by the Hon'ble Supreme Court as per the decision reported in Sundaresa Pai vs. Sumangala T.Pai, 2002 1 KerLT 32 . In this case, in the rejoinder filed by the petitioner, (copy of which was made available during arguments) and in the application for sending the "will" for expert opinion, the plaintiff specifically alleged that the signature of Late Mahadevan found in the "will" was forged one. The plaintiff in the application to send the "will" for expert opinion has also averred that there is a considerable difference in the signatures of late Mahadevan seen in the disputed "will", when compared to Exhibit A2 and Exhibit B11. The Hon'ble Supreme Court in H.Venkitachala Iyengar V.Thimmajamma and others, 1959 AIR(SC) 443 after referring to Sections 45, 47, 67 and 68 of the Evidence Act held in paragraph 18 as follows: