V.B. Pavithran v. Subramaniyan and others

``` OP(C) NO. 1735 OF 2014 ``` ``` 1 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 23[RD] DAY OF FEBRUARY 2023 / 4TH PHALGUNA, 1944 OP(C) NO. 1735 OF 2014 ``` ## **`OS 173/2010 OF PRINCIPAL SUB COURT / COMMERCIAL COURT, ALAPPUZHA PETITIONER/S:`** ``` V.B.PAVITHRAN S/O.LATE BHASKARAN, VELIYIL VEEDU, VATTAYAL WARD ALAPPUZHA. BY ADV SRI.B.JAYASANKAR ``` ## **`RESPONDENT/S:`** ``` 1SUBRAMANIYAN KODIVEETTIL, PERUMPALLYTHURA, KARTHIKAPPALLY PIN-690516 2C.V. MADHURANATHAN KODIVEETTIL BEACH WARD, ALAPPUZHA, PIN-688 001. 3C.V. MANOJKUMAR KODIVEETTIL, BEACH WARD, ALAPPUZHA, PIN-688 001. 4C.V. ASWATHY KODIVEETTIL, BEACH WARD, ALAPPUZHA, PIN-688 001. 5C.V. MAHESH KODIVEETTIL, BEACH WARD, ALAPPUZHA, PIN-688 001. BY ADVS.SRI.GEORGE MATHEW FOR R2 SRI.K.S.HARIHARAPUTHRAN FOR R2 ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 1735 OF 2014 ``` ``` 2 ``` ## **JUDGMENT** The original petition is filed challenging Ext.P5 order passed in I.A.No.720/2014 in O.S.No.173/2010 by Court of the Subordinate Judge, Alappuzha. The petitioner is the plaintiff and the respondents 1 to 5 are the defendants in the suit. The 6[th] respondent has been impleaded as the legal representative of deceased 1[st] respondent. 2. The petitioner’s case, shorn off exhaustive pleadings, is: the petitioner has filed the suit against the respondents 1 to 5 to set aside Will Deed No.25/2000 of SRO, Alappuzha, inter-alia, on the allegation that it is a forged document. The 1[st] respondent was the brother of the petitioner’s father late Bhaskaran, and the respondents 2 to 5 are the children of another brother of the petitioner’s father named C.V.Viswanathan. The petitioner is the sole legal heir of his father. His father and his brothers had availed a loan from the State Bank of Travancore by mortgaging the plaint schedule property. The bank proceeded against the property. After the death ``` OP(C) NO. 1735 OF 2014 ``` ``` 3 ``` of Bhaskaran, the petitioner was impleaded as an additional respondent in the execution petition. It was then that the petitioner came to learn that the respondents were claiming a right over the properties on the strength of a Will executed by Bhaskaran. In fact, his father was admitted in hospital from 10.03.2000 and succumbed to his illness on 21.03.2000. The crucial aspect in the suit is, whether the Will bears the signature of Bhaskaran? Even though the onus of proof is on the respondents to substantiate that the Will was executed by Bhaskaran, out of abundant caution, the petitioner filed I.A. No.720/2014 (Ext.P3) to send the disputed Will for expert opinion, along with the admitted signature of Bhaskaran which was subscribed in the Marriage Register maintained with Sree Bhagavathi Vilasam Arayajana Sangham, Alappuzha. The application was opposed by the respondents through Ext.P4 written objection. The court below, by the impugned Ext.P5 order, has dismissed Ext.P3 application. Ext.P5 is manifestly wrong and untenable. Hence the ``` OP(C) NO. 1735 OF 2014 ``` ``` 4 ``` original petition. 3. Heard, Sri.B.Jayasankar, the learned counsel appearing for the petitioner and Sri.K.S.Hariharaputhran, the learned counsel appearing for the 2[nd] respondent. Service is complete on the other respondents. 4. The question is, whether there is any illegality in Ext.P5 order. 5. The petitioner has filed the suit to declare Will Deed No.25/2000 of Alappuzha as null and void on the ground that it is a forged testament. 6. To substantiate the above contention, the petitioner filed Ext.P3 application to send the Will for expert opinion by comparing the signature of his father on the Will and in the Marriage Register maintained by Sree Bhagavathi Vilasam Arayajana Sangham, Alappuzha. 7. Undisputedly, the petitioner’s father’s marriage took place in 1121M.E, corresponding to the English year 1946. 8. The court below, on finding that there was a time ``` OP(C) NO. 1735 OF 2014 ``` ``` 5 ``` of between the of gap sixty eight years signature Bhaskaran in the Marriage Register and Will Deed, held that the signature in the Marriage Register was not contemporaneous and, therefore, it would be a futile exercise to send the document for expert opinion. 9. Sri. B.Jayasankar placed reliance on the decision of the Hyderabad High Court in **Bande Shiva Sankara Srinivasa Prasad** v. **Ravi Surya Prakash Babu and others** [2016 KHC 3191] to fortify the contention that, it is not always necessary to have contemporaneous handwritings/signatures for comparison. 10. Nonetheless, in the same decision, it is observed that, as a general rule, it would be desirable to undertake comparison of admitted handwritings/signatures with disputed handwritings/ signatures which fall within the range of 2 or 3 years from each other. However, there is no hard and fast norm as to when comparison can or cannot be undertaken owing to the time lag between the two sets of handwritings/signatures. ``` OP(C) NO. 1735 OF 2014 ``` ``` 6 ``` 11. It is trite; that expert opinion is only opinion evidence and the same is to be received with great caution and circumspection, especially in the case of a handwriting opinion. 12. There is profusion of precedential authority that it is unsafe to decide a matter solely on the basis of such opinion, unless there is substantial corroboration. 13. In the case on hand, the petitioner’s definite case is that the Will is a forged document. The Will was executed in the year 2000. The petitioner aspires to have the signature of the Will to be compared with the document, that is nearly seven decades old. Even going by the law laid down in **Bande Shiva Sankara Srinivasa Prasad** ’s case (supra), it is always advisable to have a signature of the disputed handwriting in the range of 2 to 3 years. 14. Furthermore, in view of the exposition of law that expert opinion is only an opinion evidence, I am of the firm view that it would be unnecessary and unwarranted, ``` OP(C) NO. 1735 OF 2014 ``` ``` 7 ``` at this point of time, i.e. after the lapse of nearly 13 years, to refer the document for handwriting opinion. On the contrary, the court below is to be directed to consider and dispose of the suit, on the basis of available materials, within the shortest possible time period. Resultantly, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, I dispose of the original petition as follows: (i) Ext.P5 order is confirmed. (ii) The Court of the Subordinate Judge, Alappuzha, is directed to consider and dispose of O.S.No.173/2010, in accordance with law, as expeditiously as possible. **Sd/-** ## **C.S.DIAS, JUDGE** okb/23.2.23 //True copy// P.S. to Judge ``` OP(C) NO. 1735 OF 20148 ``` ## **`APPENDIX OF OP(C) 1735/2014`** ``` PETITIONER EXHIBITS Exhibit P1 ``` ``` A TRUE COPY OF THE PLAINT IN O.S NO. 173/2010 ON THE FILES OF SUB COURT ALAPPUZHA ORIGINALLY FILED AS OS NO. 324/2002 ON THE FILES OF THE SUB COURT MAVELIKARA. ``` ``` Exhibit P2A TRUE COPY OF THE WRITTEN STATEMENT FILED BY RESPONDENTS 1 AND 2 ``` ``` Exhibit P3A TRUE COPY OF I.A.NO.720/2014 IN THE O.S.NO.173/ 2010 ON THE FILES OF SUB JUDGE ALAPPUZHA DATED 20.06.2014. ``` ``` Exhibit P4 ``` ``` Exhibit P5 ``` ``` A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS 1 AND 2 TO P3 DATED 1/7/2014. A TRUE COPY OF THE ORDER DATED 08-07-2014 IN I.A.NO. 720/2014 IN O.S.NO. 173/2010 ON THE FILES OF THE SUB JUDGE ALAPPUZHA. ```