M.R. PALANISAMY Vs. GNANASOUNDARI AND ORS.

JUDGEMENT

(1.) The Civil Revision Petition has been filed to set aside the fair and decretal order dated 29.01.2018 passed in I.A.No.1152 of 2016 in O.S.No.233 of 2015 on the file of the II Additional District-cum-Sessions Court, Tiruppur.

(2.) According to the petitioner/first defendant, the respondents/plaintiffs filed a suit in O.S.No.233 of 2015 against the petitioner/first defendant and other defendants seeking declaration, partition and permanent injunction on the file of the learned II Additional District-cum-Sessions Judge, Tiruppur. In the aforesaid suit, the first defendant filed an application in I.A.No.1152 of 2016 under Order 26, Rule 10(A) read with section 45 of the Indian Evidence Act, to appoint a Commissioner to take the disputed signature in the original unregistered Will dated 17.09.2014 to the Government Handwriting Expert for opinion by comparing the same with the signature of M.R.Karuppasamy in the admitted sale deeds executed by him on 08.07.2014 (Document No.3078/2014) and 20.11.2014 (Document No.5601/2014). A counter statement has also been filed in the said I.A. stating that petitioner has already obtained the expert opinion from Private Agency and the same has also been marked and further it is stated that the execution of the Will has to be proved before the Court below under section 68 of Indian Evidence Act. The trial Court, after considering the submissions made by both parties and on perusal of records, dismissed I.A.No.1152 of 2016 by order dated 29.01.2018 stating that the plaintiffs have to prove the Will before the Court. Aggrieved by the said order, the present Civil Revision Petition has been filed.

(3.) The learned counsel for the petitioner submitted that when the respondents relied upon the alleged unregistered Will, which has been executed in their favour, in respect of the common property claiming to be their exclusive property, the petitioner is bound to disprove the alleged unregistered Will dated 17.09.2014. Hence, the petitioner filed I.A.No. 1152 of 2016 with the aforesaid prayer. But, the trial Court without considering the prayer sought for by the petitioner, erroneously, dismissed the application. Hence, the impugned order passed by the Court below is liable to be seaside.