Allowed

Joy C. Itty, v. Premila Mary Kurian

Kerala HC13 Nov 2023OP(C)/2038/2023

Case brief

AI extract

What is this about?

The High Court allowed a PIL challenging the rejection of an application to send a disputed Will for signature comparison. The Court held the application was not belated and directed the trial court to appoint a private expert for comparison to expedite the long-pending suit.

What did the court decide?

Original Petition allowed; Court directed trial court to appoint a private private expert for signature comparison of the Will and dispose of the suit within two months.

Joy C. Itty, Vs Premila Mary Kurian — Constitutional and Fundamental Rights | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN

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MONDAY, THE 13^TH DAY OF NOVEMBER 2023 / 22ND KARTHIKA, 1945

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OP(C) NO. 2038 OF 2023

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AGAINST THE ORDER/JUDGMENT OS 342/2017 OF ADDITIONAL MUNSIFF COURT

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,KOTTAYAM

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PETITIONER/PLAINTIFF:

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JOY C. ITTY, AGED 59 YEARS S/O LATE C. J. ITTY, NOW RESIDING AT HOUSE NO 133, 14A CROSS ROAD, VYALIKAVAL, BENGALURU, VYALIKAVAL VILLAGE, BANGALOR NORTH THALUK, BENGALURU URBAN DISTRICT, PIN - 560003 BY ADVS. C.S.MANILAL S.NIDHEESH

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RESPONDENT/DEFENDANTS:

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1 PREMILA MARY KURIAN AGED 64 YEARS W/O LATE CHOTHIRAKUNNIL ITTY KURIAN, CHOTHIRAKUNNEL HOUSE, NOW RESIDING AT 3B2, FLAIR ALLIANCE ATRIUM, NEAR INFOPARK SOUTH GATE OFF INFOPARK EXPRESSWAY, KAKKANADU P.O, . KAKKANADU VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT, PIN - 682030 2 ANISH JOB KURIAN AGED 39 YEARS S/O LATE CHOTHIRAKUNNIL ITTY KURIAN, CHOTHIRAKUNNEL HOUSE, NOW RESIDING AT 3B2, FLAIR ALLIANCE ATRIUM, NEAR INFOPARK SOUTH GATE OFF INFOPARK EXPRESSWAY, KAKKANADU P.O, KAKKANADU VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT, PIN - 682030 3 SUNISH GEORGE KRUIAN AGED ABOUT 31 YEARS S/O LATE CHOTHIRAKUNNIL ITTY KURIAN, CHOTHIRAKUNNEL HOUSE, NOW RESIDING AT 3B2, FLAIR ALLIANCE ATRIUM, NEAR INFOPARK SOUTH GATE INFOPARK EXPRESSWAY, KAKKANADU P.O, . KAKKANADU VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT., PIN - 682030 4 SARASAMMA K.K AGED ABOUT 52 YEARS , W/O.JAMES, CHOTHIRAKUNNEL HOUSE, PALLIKKAL P.O., NATTAKOM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN - 682012 BY ADVS. M.P MADHAVANKUTTY MATHEW DEVASSI(K/000548/2017) ANANTHAKRISHNAN A. KARTHA(K/001032/2016)

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(C).No. 2038 of 2023

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..2..

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J U D G M E N T

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Dated this the 13^th day of November, 2023

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This Original petition is preferred challenging Ext.P6 order, which rejected an application preferred by plaintiff for sending the original of

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a Will for comparison of the signature, under

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Section 45 of the Indian Evidence Act. Vide Ext.P6 order, the same was rejected stating that the Will can be proved by other methods envisaged

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under the Indian Evidence Act. The application vide Ext.P5 was rejected for the reason that Ext.P5 is belated and also for the reason that the evidence tendered under Section 45 of the Indian Evidence Act is only an opinion evidence.

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2. Heard the learned counsel for the petitioner

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and the learned counsel for the respondent.

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O.P.(C).No. 2038 of 2023

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..3..

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3. Having considered the attendant facts and circumstances, this Court is of the opinion that this Original Petition deserves to be allowed. This Court notice that the suit is of the year 2017 and the written statement was filed on 07.07.2018, propounding the disputed Will for setting up a title in favour of the defendants exclusively. Thereupon, the plaintiff filed an application to produce the original Will before the court on 12.09.2018. The same was not complied with; instead the defendants filed a LA (OP) on 07.12.2018, wherein the original of the Will was produced. Thereafter, the matter was listed for trial and the trial commenced. The defendants filed an application on 31.05.2023 for a direction to call for the original Will for being produced in the subject suit. Accordingly, the Will was produced on 03.04.2023, whereupon, the plaintiff filed Ext.P5 application 08.03.2023 for sending the Will for comparison by an expert

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O.P.(C).No. 2038 of 2023

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..4..

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disputing the signature therein. This Court is not in a position to appreciate the finding of the trial court that the application is belated. The Will was produced in the suit for the first time only on 03.04.2023. Upon perusal of the same only, the plaintiff could file an application for comparison of the signature. Therefore, the finding that the application under Section 45 is belated cannot be accepted, especially when the plaintiff filed an I.A. earlier seeking production of the Will. The second reason is that the evidence tendered vide Section 45 of the Indian Evidence Act is only an opinion evidence. Though the legal proposition is correct, the same cannot be espoused as a reason for rejecting an application under Section 45. As it is well settled, the plaintiff is the master of the suit,

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and it should be left to the discretion of the plaintiff as to how a disputed fact has to be

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O.P.(C).No. 2038 of 2023

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..5..

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proved, not withstanding the other options available under the Evidence Act.

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4. In such circumstances, this Original Petition

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is only to be allowed. This Court do consider to the serious objection of the learned counsel for respondent, especially in the aspect of a possible delay in disposing the suit of the year 2017. In this circumstances, this Court is of the opinion that, the Will can be sent for comparison to a private expert, since, sending the document to FSL, may entail inordinate delay. To the course suggested by this Court, learned counsel for the petitioner is amenable. Accordingly, this Original petition is disposed of with following directions:

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Both sides will submit a panel of private experts before the court below, from which, the trial court will appoint a private expert, to whom the disputed document/Will shall be sent for

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O.P.(C).No. 2038 of 2023

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..6..

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comparison. The trial court will fix a time limit, within which the expert opinion has to be obtained. Once the opinion is obtained, trial court will expedite the trial of the suit and the same shall be disposed of as expeditiously as possible, at any rate within a period of two months from the date on which such a expert opinion is received. It is clarified that the trial for the time being will be stopped and the same shall be proceed from that stage, once the expert opinion is received.

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Accordingly, the Original Petition is disposed as above.

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Sd/- C. JAYACHANDRAN JUDGE

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O.P.(C).No. 2038 of 2023

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..7..

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PETITION	ER EXHIB	ITS
Exhibit	P1	TRUE COPY OF O.S.342/2017 COURT, KOTTA	THE , FIL YAM,	PLAINT IN ED BEFORE THE MUNSIFF DTD. 2/5/2017
Exhibit	P2	TRUE COPY OF O.S.342/2017 COURT, KOTTA	THE FILE YAM,	WRITTEN STATEMENT IN D BEFORE THE MUNSIFF DTD. 7/7/2018
Exhibit	P3	TRUE COPY OF O.S.342/2017 COURT, KOTTA AFFIDAVIT	THE FILE YAM,	I.A. NO.2656/2018 IN D BEFORE THE MUNSIFF DTD. 12/9/2018, WITH
Exhibit	P4	TRUE COPY OF O.S.342/2017 COURT, KOTTA	THE FILE YAM,	I.A. NO.1/2021 IN D BEFORE THE MUNSIFF DTD. 30/7/2021
Exhibit	P5	TRUE COPY OF NO.342/2017 MUNSIFF COUR	THE FILED T, KO	I.A. NO.11/2023 IN O.S BEFORE THE ADDL. TTAYAM, DTD. 31/5/2023
Exhibit	P6	TRUE COPY OF IN I.A NO.11 THE FILE OF KOTTAYAM	THE /2023 ADDL.	ORDERDATED 25.8.2023 IN O.S NO.342/2017 ON MUNSIFF COURT,
RESPONDE	NT EXHIB	ITS
Exhibit	R1(b)	True copy of	the	will dated 10-10-2013
Exhibit	R1(a)	True copy of	the	will dated 25-11-2009
Exhibit	R1(c)	True copy of	the	deposition of PW2

Joy C. Itty, v. Premila Mary Kurian

Case brief

What is this about?

What did the court decide?

Joy C. Itty, v. Premila Mary Kurian

Case brief

What is this about?

What did the court decide?

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