IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34957 of 2008(J)
1. JOSE, S/O.MATHEW, PAYYANAD AMSOM
... Petitioner
Vs
1. PULIKKOD VIJAYALAKSHMI,
... Respondent
2. NHARAKKOTT KALATHIL SREELATHA,
3. KUNNAMPURATH MATHEW, S/O.MATHEW,
4. MERY, W/O.JOSEPH, NERYAMANGALAM P.O.
5. JASINTHA BABY, W/O.BABY, PERAVOOR,
6. RAJEENA @ DAISY, D/O.MATHEW,
7. SHYNI, W/O.SHABU, KARUVARAKUNDU AMSOM,
8. LAISA, W/O.JOSE, PAYYANAD AMSOM DESOM,
For Petitioner :SRI.T.K.AJITH KUMAR
For Respondent :SRI.SUSHANTH.J.
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :21/08/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).NO.34957 OF 2008 (j)
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Dated this the 21st day of August, 2009
J U D G M E N T
The writ petition is filed seeking the following reliefs:
i. to call for the records leading up to
Ext.P4 order dated 3.11.2008 in
I.A.No.763 of 2005 in O.S.No.102 of
2000 passed by the Munsiff Court,
Manjeri and set aside the same.
ii. to issue any other appropriate writ,
order or direction as the case may be as
this Honourable Court may deem fit and
necessary in the interest of justice.
2. Petitioner is the 7th defendant in O.S.No.102 of 2000
on the file of the Munsiff Court, Manjeri. The above suit is one
for partition, and the respondents are the plaintiff and the
other defendants in the suit. The 2nd respondent as plaintiff
laid the suit for partition setting forth a case that the property
originally belonged to her mother Annakutty, and on her
death, her husband got /3 right over the property. That /3
1 rd 1 rd
WPC.34957/08 2
right obtained by Mathew, the husband of Annakutty was
conveyed to the plaintiff under a deed executed by him. The
plaintiff, defendants 1 and 2 and another son of Annakutty
namely, Jose, each has right over /9 share in her property.
1 th
The above referred Jose conveyed his right under a sale deed
to the 6th defendant. Plaintiff sought for partition of her /9
3 th
share in the property. Later, on the basis of the contentions
raised by defendants 1 to 5 that later Annakutty had executed
a will, 7th defendant Jose and another, 8th defendant, were
additionally impleaded in the suit. Since the deed in favour of
the plaintiff by Mathew, the husband of Annakutty and also
the documents in favour of the 6th defendant by the 7th
defendant, namely, Jose, son of Annakutty, were disputed by
the other defendants, plaintiff had moved an application for
forensic examination of those documents. Admittedly, the
applications so filed were declined by the learned Munsiff,
which was challenged earlier before this Court in W.P.(C).
No.11863 of 2005. That writ petition was disposed by
judgment dated 22nd July, 2008. While disposing the writ
petition, this Court has held that so far as the documents
WPC.34957/08 3
executed by the 7th defendant in favour of the 6th defendant,
the burden of proving that document, if found necessary, was
on the 6th defendant and not on the plaintiff. Presumably, on
that observation, the 6th defendant moved an application to
summon the 7th defendant to get his signature and sent over
the document executed by him in his favour for forensic
examination, contending that the 6th defendant had disputed
execution of the deed. The learned Munsiff allowed the
application of the 6th defendant/1st respondent in the writ
petition. Propriety and correctness of that order is challenged
in the writ petition by the 7th defendant invoking the
supervisory jurisdiction vested with this Court under Article
227 of the Constitution of India.
4. I heard the learned counsel for the petitioner and also
the 1st respondent. The argument canvassed by the learned
counsel for the petitioner is that at this stage of the suit, the
forensic examination of the document purported to have been
executed by the 6th defendant in favour of the 7th defendant
after getting the signature of the 6th defendant is not
WPC.34957/08 4
warranted. It is more so, according to the counsel, since the
document which is sought to be compared has been produced
in another suit and while disposing the writ petition moved by
the plaintiff earlier, this Court has held that at the appropriate
stage for comparison of the signatures by the court, plaintiff
can file fresh petition for summoning those documents
produced in the other suit. On the other hand, the learned
counsel for the 1st respondent submitted that in view of the
observations made in the previous statement, a copy of which
is produced as Ext.P2, it was incumbent upon the 6th
respondent to take steps to prove the document executed in
his favour by the 7th defendant. Perusing Ext.P2 judgment
rendered in the writ petition earlier moved by the plaintiff/2nd
respondent, I find this Court has made an observation that the
plaintiff has no burden to prove execution of document
No.5245 of 1998, the document purported to have been
executed by the 7th defendant in favour of the 6th defendant,
and, it is for the 6th defendant to prove the same. That
observation does not ipso facto compel the 6th defendant as to
prove the execution of the above document by the
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7th defendant by forensic examination. The above document
being a registered document, it is not incumbent upon the 6th
defendant to prove the signature of the 7th defendant, as the
execution can be proved otherwise as provided by law.
Presumptive value of the registered document will not be lost
by mere denial of the execution by the executant of the
document. Resistance put up by the 7th defendant to the
forensic examination is also a circumstance which may give
rise to an adverse interference that his denial is not bona fide.
Forensic examination of registered document solely for the
reason that the executant had been denied by the executant,
normally, is not warranted unless special circumstances
justifying such examination is found essential to prove due
execution of that document. At this stage of the suit, solely for
the reason that the 7th defendant has denied the execution of
the document in his written statement without any other
circumstance supporting that contention, no forensic
examination of the document after summoning the 7th
defendant and getting the signature is necessary. Ext.P4
order is set aside as the execution of that document can be
WPC.34957/08 6
proved otherwise than by the forensic examination comparing
the admitted signature of the executant with that appearing in
the document.
The writ petition is accordingly disposed.
S.S.SATHEESACHANDRAN
JUDGE
prp