PONNAVOLU SIVA KUMAR REDDY Vs. NELLORE VIKRAM REDDY

JUDGEMENT

(1.) Defendant No.1 before the trial Court filed these revisions under Article 227 of the Constitution of India. C.R.P.No.7036 of 2018 questions the correctness of order dtd. 13/11/2018 of learned Principal Senior Civil Judge, Nellore in I.A.No.567 of 2018 in O.S.No.379 of 2011. C.R.P.No.7172 of 2018 questions the correctness of order dtd. 13/11/2018 of learned Principal Senior Civil Judge, Nellore in I.A.No.607 of 2018 in O.S.No.379 of 2011.

(2.) The suit before the trial Court was for injunction. Certain registered sale deeds in Exs.A.1 and A.3 are said to have finally conveyed plaint A and B schedule properties in favour of Smt. Magunta Lakshmi Kanthamma. Thereafter, she initially executed one registered Will dtd. 11/3/2004 and thereafter, she executed Ex.A.5-Will being attested by her husband, son and daughters and under the said Will she cancelled the earlier Will and granted the properties. It was with such averments, claiming properties under Ex.A.5-Will the suit for injunction was laid. Contentions of defendants include questioning of validity of the sale deeds standing in favour of Smt. Lakshmi Kanthamma and the defendants relied on the earlier Will/Ex.B.1 dtd. 11/3/2004 and question the correctness of Will propounded by the plaintiff in Ex.A.5 dtd. 20/3/2009 and alleged that it was a forged and fabricated unregistered Will. It was in the backdrop of these facts, while the evidence recording was in progress, the defendants filed the two applications. I.A.No.607 of 2018 was filed under Order XVI Rule 4 read with Sec. 151 C.P.C. summoning from Sub-Registrar, Nellore, the register that contains the signatures and thumb impressions of the executant of the registered Will dtd. 11/3/2004 and I.A.No.567 of 2018 was filed under Sec. 45 of the Indian Evidence Act read with Sec. 151 C.P.C. to send Ex.A.5-Will and the said register and Ex.B.1 to the handwriting expert for comparison of the signatures of Smt. Lakshmi Kanthamma. In both the applications, the plaintiff filed counters and resisted the prayers. Learned trial Court on hearing both sides and on perusal of the record made the following observations:

(3.) It recorded that Ex.B.1 was the copy of Will on which the defendants placed reliance, but the original of Ex.B.1 was not produced. Therefore, comparison of Ex.A.5-Will as against Ex.B.1-Will could not arise. It then observed that Ex.A.5, which is a disputed Will, contains only signature and does not contain the thumb impression of the executant. Since it does not contain the thumb impression, calling for the register from Sub-Registrar, which contains only the thumb impressions of the said Smt. Lakshmi Kanthamma serves no purpose. It further stated that the principal contention of the defendants was about the truth and validity of sale deeds that were registered in favour of late Smt. Lakshmi Kanthamma. Therefore, Ex.A.5-Will allegedly executed by Smt. Lakshmi Kanthamma by itself cannot be disputed by the defendants especially as the Will of such nature is a matter for being disputed by her family members and not for the defendants. It stated that the said Will was attested by all the family members of the testator. It was with these observations it concluded saying that Ex.A.5-Will does not effect the defendants since they are no way concerned with it and therefore, sending it for comparison does not serve any purpose. It was with those observations and conclusions, it dismissed both the petitions.