DURAISAMY Vs. PAVAYEE

JUDGEMENT

(1.) This Civil Revision Petition has been filed to set aside the Fair and Final order passed in I.A.No.699 of 2016 in O.S.No.608 of 2008 dtd. 11/11/2016 on the file of the Sub Court, Tiruchengode dismissing the petition filed seeking to permit the petitioners/defendants to mark the registered Will dtd. 27/1/2000 which was executed by one Thangamuthu in favour of the Second Petitioner.

(2.) The learned counsel for the petitioners would submit that the petitioners are the defendants in O.S.No.608 of 2008 filed by the respondent/plaintiff for partition and separate possession of the suit property. He would further submit that the first petitioner/first defendant was examined as DW-1 and that he had filed a proof affidavit on 15/10/2014 and even prior to that, the first petitioner had filed the registered Will dtd. 27/1/2000 executed by his elder brother namely Thangamuthu in favour of the second petitioner/second defendant. He would further submit that the elder brother Thangamuthu passed away on 3/2/2003 and that the petitioners had also filed the death certificate and other connected documents. He would further submit that since, objection was made by the respondent / plaintiff to mark the registered Will dtd. 27/1/2000, the documents have not been not marked till date. He would further submit that since, the second petitioner/second defendant namely Dinesh was a minor at the time of execution of the Will, the executor/his elder brother had appointed the first petitioner /first defendant as a guardian of the 2nd defendant and the Will was also in the custody of the 1st petitioner and thereafter, the Will was filed before the Trial Court. He would further submit that since, the second petitioner/second defendant was not in station, in order to prove the finger print of the Executor of the Will, the first petitioner/ first defendant had produced the certificate issued by the Forensic Experts and thereby, the petition was filed to mark the Will through the 1st petitioner. He would further submit that the respondent had filed a counter objecting that the second petitioner/second defendant had attained majority and that the Will could be either marked though the second petitioner/second defendant or through the witnesses who had attested the Will and the Trial Court without looking into the legal positions that a document can be marked subject to the objections raised by the other side and that such objections can be decided at the final stage while delivering judgment, had dismissed the petition. He would further submit that the Hon'ble Apex Court in Bipin Shantilal Panchal V. State of Gujarat and Another reported in (2001) (3) SCC 1 has held that when any objection is raised regarding admissibility of any material or any item of oral evidence, the Court instead of passing any detailed order allowing or rejecting the objections, should make a note of such objection and decide it at the last stage of the final Judgment and that procedure has to be followed except to the objections relating to the stamp duty of the documents. The Apex court has deprecated such practice for the reason that it would pave way for delay in trial, since the Court has to suspend the trial to enable parties to approach the higher forum. He would further submit that in this case, there is no quarrel with regard to stamp duty and that the respondent/ plaintiff had only objected the mode of marking. He would further submit that the trial Court without taking into consideration the law in that aspect, had dismissed the petition and thereby, he would seek to set aside the order and permit the petitioners to mark documents.

(3.) Per contra, the learned Counsel for the respondent/plaintiff would oppose stating that in this case, an attempt was made by the first petitioner/1st defendant to mark a document when he is neither the scribe of the document nor the attesting witness to the document and further, the beneficiary of the Will, who is the second petitioner /second defendant in this case, has attained majority and there is no quarrel in the document being marked through the second petitioner/second defendant who is the beneficiary of the Will. He would further submit that the Trial Court has also found that the petition has been filed belatedly only to drag the trial and thereby, the trial Court has rightly dismissed the petition. He would further submit that the Trial Court by following the dictum laid down in Karthik Meyyappan and Others Vs. Sudha Devi and Others reported in 2016 (6) MLJ 371 has rightly dismissed the petition.