Kerala High Court
Kottarath Suresh Kumar vs P. Geetha Devi on 11 November, 2024
O.P (C) No.1778 of 2023 1
2024:KER:83611
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
MONDAY, THE 11TH DAY OF NOVEMBER 2024 / 20TH KARTHIKA, 1946
OP(C) NO. 1778 OF 2023
AGAINST THE COMMON ORDER DATED 10.08.2023 IN IA
NO.8/2023 AND 13/2023 IN OS NO.347 OF 2007 OF ASSISTANT
SESSIONS COURT/I ADDITIONAL SUB COURT,ERNAKULAM
PETITIONER/PETITIONER/ADDL.7TH DEFENDANT:
KOTTARATH SURESH KUMAR,AGED 55 YEARS
S/O. LATE KRISHNA PODUVAL, 'MADHAVAM',
SUBHADRALAYAM, AMBADY, POONITHURA VILLAGE,
KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN - 682304
BY ADV VPK.PANICKER
RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANT 1 TO 6 & 8 AND
9:
1 P. GEETHA DEVI, D/O. JANAKI AMMA,T.C.NO.35/1509,
EETTAYOORKONAM ROAD, KURUIVKKAD, VATTIYOORKAVU,
THIRUVANANTHAPURAM, PIN - 695013
2 VALSALA N.MENON, WIDOW OF NANDAN MENON, SREEVALSOM,
C.C.NO.39/3234, VRM ROAD, RAVIPURAM, ERNAKULAM,
PIN - 682015
3 P.REMA DEVI,(DIED).
IT IS RECORDED THAT R8 & R9 ARE THE LRS OF R3 VIDE
ORDER DATED 12/07/2024 IN MEMO DATED 09/07/2024,
4 K.A.SATHYAJITH,S/O.LATE P.SANTHA KUMARI,
SOUPARNIKA, XIV/121, MARADU POST, KOCHI, PIN -
682020
5 BEENA V.NAIR,D/O.LATE P.VASANTHA KUMARI, 1854/40,
19TH MAIN CROSS, MARUTHI, MANTHIR, VIJAYA NAGAR,
BANGALORE, PIN - 560040
O.P (C) No.1778 of 2023 2
2024:KER:83611
6 NEETHA V.NAIR, D/O.LATE P.VASANTHA KUMARI, 1854/40,
19TH MAIN CROSS, MARUTHI MANTHIR, VJAYA NAGAR,
BANGALORE, PIN - 560040
7 LAKSHMI CRANES, KUNDDANOOR, MARADU POST, KOCHI,
PIN - 682304
8 HARISH NATHAN, S/O. LATE P.REMA DEVI, A-1103,
AVALON, HIRANANDINI GARDENS, POWAI, MUMBAI, PIN -
400076
9 RAMESH NATHAN,S/O. LATE P.REMA DEVI, A-1103,
AVALON, HIRANANDINI GARDENS, POWAI, MUMBAI PIN -
400076
R1 BY ADVS. V.R.KESAVA KAIMAL
C.DEVIKA RANI KAIMAL(D-63)
R2 BY ADVS.Sreejith S. Nair
BIJU JOSEPH(B-186)
REMIL REGI GEORGE(K/479/2022)
R4, R8, R9 BY ADVS.P.VISHNU PRASAD
AMRETHA RANI M.H.(K/2081/2021)
R5 & R6 BY ADVS.A.MUHAMMED MUSTHAFA
M.P.SREEKRISHNAN(K/96/1994)
SALEEL SULTHAN.P.T(K/002652/2023)
R7 BY ADVS.sam isaac pothiyil
S.SURAJA(K/460/2015)
VIPIN M.V.(K/1275/2018)
MUHAMMED SUHAIR C.A(K/000535/2020)
ABEY GEORGE(K/001109/2021)
HARISH V.S.(K/000721/2022)
RAMU SUBHASH(K/2497/2022)
ANANTHAKRISHNAN R.(K/873/2023)
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13.09.2024,
THE COURT ON 11.11.2024 DELIVERED THE FOLLOWING:
O.P (C) No.1778 of 2023 3
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VIJU ABRAHAM, J.
.................................................................
O.P (C) No.1778 of 2023
.................................................................
Dated this the 11th day of November, 2024
JUDGMENT
The above original petition is filed seeking to set aside Ext.P10 order dated 10.08.2023 in I.A.Nos.8 of 2023 and 13 of 2023 in O.S.No.347 of 2007 on the file of the I Additional Subordinate Judge's Court, Ernakulam. By the impugned order the application filed by the petitioner to send/remit the report dated 10.09.2021 of the State Forensic Science Laboratory, Police Department, Government of Kerala, Thiruvananthapuram, for comparison and report on the signature and thumb impression in the Will registered as document No.144/111/02 dated 07.09.2002 of SRO, Maradu and the signature and thumb impression in the Gehan registered as document No.2221/2001 of the SRO, Maradu stand dismissed. Originally the 1 st defendant in the suit filed I.A.No.509 of 2017 seeking to send the original of the Will along with the documents containing the signature of the testator to the Government Forensic Science Laboratory, Thiruvananthapuram for expert opinion as to the genuineness of the Will. The trial court by order dated 01.02.2017 dismissed the said application which was challenged in O.P.(C) No.415 of 2017 and this O.P (C) No.1778 of 2023 4 2024:KER:83611 Court as per Ext.P1 judgment directed the court below to send the document for expert opinion on the signature as well as thumb impression based on the admitted documents of the parties. It is submitted that the 1st defendant had earlier filed I.A.No.2422 of 2017 praying to call for the loan application executed by the late Janaki Amma and other allied documents containing the thumb impression from the Maradu Service Co-operative Bank. Even though the trial court had issued the direction on 12.12.2017 the documents were not produced and the bank filed a memo stating that the loan of Pannayil Janaki Amma (membership No.19737) with the Maradu Service Co- operative Bank had been closed by the 1st defendant and had got back all the documents. The trial court as per order dated 09.01.2018 directed the bank to produce the loan application dated 11.06.2011 and all other documents with signature and thumb impression of late Janaki Amma and posted the case to 23.01.2018, but no further order is seen passed in the said interlocutory application. Subsequent to Ext.P1 judgment the trial court sent the disputed Will and the original of document No.4845 of 1986 of SRO, Thripunithura for comparison of signature to the State Forensic Science Laboratory and Ext.P2 report was filed. It is contended by the petitioner that the examiner without considering the fact that she was comparing the signature in the partition deed which was executed in 1986 when the testator was aged O.P (C) No.1778 of 2023 5 2024:KER:83611 71 and the signature in the Will which was executed in 2022 when the testator was aged 87, opined that the difference in the standard signatures and questioned signatures were beyond the range of natural variation due to different authorship and held that the person who wrote the standard signatures did not write the questioned signature. Petitioner would further submit the requisition from the court was for signature examination alone. Since the thumb impression on the documents were not examined and reported as directed in Ext.P1 judgment the petitioner filed objection to the said report. Thereupon the petitioner filed I.A.No.2 of 2023 to remit the FSL report for comparing the thumb impression in the disputed Will with that of the partition deed No.4845 of 1986 of SRO, Maradu. It was then revealed that neither the partition deed nor the thumb impression register contained the thumb impression of Janaki Amma and therefore the said petition was withdrawn. In the meanwhile the petitioner came to know that the testator had executed a Gehan registered as document No.2221 of 2001 of SRO, Maradu, documented on pages 67-68 in Vol.509 while mortgaging the plaint schedule property to the Maradu Service Co-operative Bank for availing a loan in the year 2001.The petitioner obtained the certified copy of the said document and produced it before the trial court and filed Ext.P4 application numbered as I.A.No.8 of 2023 to send/remit the report dated 10.09.2021 of the O.P (C) No.1778 of 2023 6 2024:KER:83611 State Forensic Science Laboratory for comparison and report on the signature and thumb impression in the Will registered as document No.144/111/02 dated 07.09.2002 of SRO, Maradu and the signature and thumb impression in the Gehan registered as document No.2221/2001 of the SRO, Maradu, to which Ext.P5 counter affidavit was filed by the 1st respondent. Petitioner also filed Ext.P6 application numbered as I.A.No.9 of 2023 in the suit to direct the Sub Registrar of SRO, Maradu to produce the original of the Gehan registered as document No.2221 of 2001 of SRO, Maradu, documented on pages 67-68 in Vol.509 and its thumb impression register to be sent for comparison with the thumb impression in the Will, to which also the 1 st respondent has filed Ext.P7 counter affidavit. The trial court heard the matter and as per Ext.P8 order allowed I.A.No.9 of 2023 and directed the Sub Registrar of SRO, Maradu to produce the original of the Gehan and its thumb impression register. Pursuant to the said order, the Sub Registrar of SRO, Maradu produced the original of the said documents before the court. In the meanwhile defendants 3, 8 and 9 filed Ext.P9 application numbered as I.A.No.13 of 2023 to pass an order to declare that it is not necessary to send the Gehan for expert opinion after declaring that the said document is a forged document. Without affording an opportunity to file counter affidavit to I.A.No.13 of 2023, I.A.No.8 of 2023 (Ext.P4) and I.A.No.13 of 2023 (Ext.P9) were O.P (C) No.1778 of 2023 7 2024:KER:83611 heard and by Ext.P10 common order dated 10.08.2023 dismissed I.A.No.8 of 2023 and partially allowed I.A.No.13 of 2023. It is aggrieved by the same that the present original petition has been filed.
2. The learned counsel for the petitioner would submit that the trial court went wrong in issuing Ext.P10 rejecting the request of the petitioner solely for the reason that Gehan was not admitted by the other side and the court failed to note that Ext.P3 Gehan was a registered document executed by the deceased Janaki Amma before the SRO, Maradu for creating a mortgage in favour of Maradu Service Co-operative Bank pursuant to availing of a loan from the bank. It is further contended that the trial court did not properly consider the directions issued in Ext.P1 judgment in its true spirit. The interpretation given by the Subordinate Judge to the connotation in Ext.P1 judgment that "admitted document of the parties" to mean that the document with which the disputed Will is to be compared should be admitted by the opposite party is wrong and liable to be interfered with.
3. The respondents entered appearance and contended that though earlier an application was filed as I.A.No.2422 of 2017 in this regard, the 1st respondent did not pursue the said application thereafter. It is contended that a different person hired by the 1 st respondent had gone to the Maradu Service Co-operative Bank and executed the alleged mortgage deed. It further contended that the O.P (C) No.1778 of 2023 8 2024:KER:83611 burden of proving the genuineness of the alleged mortgage deed has not been discharged by the 1st defendant or the additional 7th defendant (petitioner herein). It also contended that the Will itself is a forged one and such a conclusion has been arrived at by the Forensic Science Laboratory after comparison. It is also contended that the alleged mortgage deed which is sought to be sent to the Forensic Science Laboratory is also a fabricated one and the attempt of the petitioner is only to protract the proceedings and sought for dismissal of the original petition. The 1st respondent further submits that the document sought to be called from the Maradu Service Co-operative Bank is not an admitted document and therefore cannot be sent for expert opinion.
4. I have heard the rival contentions of both sides.
5. A perusal of Ext.P10 order would reveal that the court has interpreted Ext.P1 judgment of this Court to the effect that the thumb impression has to be compared only on the basis of the admitted documents of both the parties and that the allegation of the plaintiff and other defendants is that the said Gehan is a forged document and in view of the same the Gehan is not an admitted document by all the parties and will not come within the scope of the documents mentioned in Ext.P1 judgment. Taking such a stand the court declined to send the said document for examination to the State Forensic Science O.P (C) No.1778 of 2023 9 2024:KER:83611 Laboratory. The finding in I.A.No.13 of 2023 is that the Gehan cannot be declared to be a forged one at this stage and the same can only be done after evidence is adduced and in the absence of evidence in this regard the court is unable to declare that the said Gehan is a forged document, but passed an order in the said application to the effect that it is not necessary to send Gehan No.2221 of 2001 of SRO, Maradu for expert opinion. Essentially Ext.P10 order has been issued interpreting the directions in Ext.P1 judgment to the effect that the trial court should send document for expert opinion only based on the admitted documents by the parties. The trial court interpreted Ext.P1 to the effect that only those documents which are admitted documents by all parties could be sent for forensic science examination and since the plaintiff and other defendants have taken a stand that Gehan is not an admitted document the court declined to send the document for forensic science examination.
6. The Calcutta High Court in Angur Bala Naskar v. Balaram Haider, 2022 KHC OnLine 5509 has held that the court while allowing comparison of signature by handwriting expert, has to ensure that any signature, writing or seal must be admitted, or proved to the satisfaction of the court to have been written or made by the person, that may be compared with one, which is to be proved and the court further held that mere denial would not automatically establish the plea O.P (C) No.1778 of 2023 10 2024:KER:83611 that document with which the proposed comparison was sought for was itself a fraudulent one.
7. Admittedly in the present case the request made by the petitioner in I.A.No.8 of 2023 is to remit the matter back to the State Forensic Science Laboratory for comparison and report on the signature and thumb impression in the Will registered on 07.09.2022 of SRO, Maradu and the signature and thumb impression in the Gehan registered as document No.2221 of 2001 of SRO, Maradu. It is also to be seen that the petitioner has produced copy of the Gehan registered and also filed Ext.P6 petition to direct the Sub Registrar of SRO, Maradu to produce the original of the said Gehan which was allowed by the court as per Ext.P8 order dated 30.05.2023 and the same was produced by the Sub Registrar before the trial court. This Court in Visalakshi Amma and others v. Gangadharan Nair, 2017 KHC 355 relying on Section 114 of the Evidence Act, 1872 has held that there is a presumption as to a registered document and when a document is duly registered, it may be presumed that the official acts have been regularly performed. Learned counsel also relying on Ishwar Dass Jain (Dead) through LRs. v. Sohan lal (Dead) by Lrs., 2000 KHC 900 contended that in case the document is registered, except in the case of a Will, it is not necessary to call an attesting witness, unless the execution has been specifically denied by the person by whom it O.P (C) No.1778 of 2023 11 2024:KER:83611 purports to have been executed.
8. In Ext.P1 judgment this Court ordered that the trial court shall send the document for expert opinion on the signature as well as thumb impression based on the admitted documents of the parties. The trial court while issuing Ext.P10 order interpreted the said judgment to mean that the document should be an admitted document by all the parties. I am afraid that the said interpretation given in Ext.P10 order to Ext.P1 judgment cannot be accepted. If this reasoning given by the trial court in Ext.P10 is accepted, no document could be sent for comparison by an expert as in each case the opposite party could take a contention that they are not admitting the said document, resulting in a situation where no document could be sent for expert opinion. That is not the essence of Ext.P1 judgment. Ext.P1 judgment only said the signature and thumb impression could be sent for expert opinion on the admitted documents of the parties. What has now been produced before the court is a Gehan which has been called for by the court as per Ext.P8 order from the Sub Registrar of SRO, Maradu and the same has been produced by the Sub Registrar before the court. The said Gehan is a registered document and thumb impression register is also a document used in the day to day affairs of the Sub Registrar Office. It is for the trial court to decide whether the said document could be sent for forensic science O.P (C) No.1778 of 2023 12 2024:KER:83611 examination for comparison, after hearing all parties, if required after adducing evidence. The court cannot simply reject the application stating that the said document is not admitted or objected to by the opposite party. It is for the court to decide whether such document is a valid document which could be sent for comparison by an expert. Having not done so, Ext.P10 it is liable to be interfered with. Ext.P10 order is set aside. Consequently there will be a direction to the trial court to reconsider I.A.Nos.8 of 2023 and 13 of 2023 in O.S.No.347 of 2007 and pass fresh orders in the light of the observations made above.
With the abovesaid observations, the original petition is disposed of.
Sd/-
VIJU ABRAHAM JUDGE cks O.P (C) No.1778 of 2023 13 2024:KER:83611 APPENDIX OF OP(C) 1778/2023 PETITIONER EXHIBITS Exhibit- P1 TRUE COPY OF THE JUDGMENT DATED 03/03/2017 IN OP(C) 415/2017 OF THE HON'BLE HIGH COURT OF KERALA.
Exhibit- P2 TRUE COPY OF THE REPORT FROM THE
FORENSIC SCIENCE LABORATORY DATED
10/09/2021 FORWARDED TO THE 1ST
ADDITIONAL SUBORDINATE JUDGE'S COURT,
ERNAKULAM, IN O.S. NO. 347/2007.
Exhibit- P3 TRUE COPY OF THE GEHAN REGISTERED AS
DOCUMENT NO. 2221/2001 OF S.R.O.
MARADU DOCUMENTED ON PAGES 67-68 IN
VOL. 509.
Exhibit- P4 TRUE COPY OF I.A. NO. 8/2023 IN O.S.
NO. 347/2007 BEFORE THE 1ST ADDITIONAL
SUBORDINATE JUDGE'S COURT, ERNAKULAM,
DTD.27/3/23.
Exhibit- P5 TRUE COPY OF THE COUNTER AFFIDAVIT
FILED BY THE 1ST RESPONDENT TO I.A.
NO. 8/2023 IN O.S. NO. 347/2007 BEFORE
THE 1ST ADDITIONAL SUBORDINATE JUDGE'S
COURT, ERNAKULAM, 12/7/23.
Exhibit- P6 TRUE COPY OF I.A. NO. 9/2023 IN O.S.
NO. 347/2007 BEFORE THE 1ST ADDITIONAL
SUBORDINATE JUDGE'S COURT, ERNAKULAM,
DTD. 27/3/23.
Exhibit- P7 TRUE COPY OF THE COUNTER AFFIDAVIT,
DTD. 30/3/23, FILED BY THE 1ST
RESPONDENT TO I.A. NO. 9/2023 IN O.S.
NO. 347/2007 BEFORE THE 1ST ADDITIONAL
SUBORDINATE JUDGE'S COURT, ERNAKULAM.
Exhibit- P8 TRUE COPY OF THE ORDER DATED
30/05/2023 IN I.A. NO. 9/2023 IN O.S.
NO. 347/2007 OF THE SUB COURT
ERNAKULAM.
O.P (C) No.1778 of 2023 14
2024:KER:83611
Exhibit- P9 TRUE COPY OF I.A. NO. 13/2023 IN O.S.
NO. 347/2007 OF THE 1ST ADDITIONAL
SUBORDINATE JUDGE'S COURT, ERNAKULAM.
Exhibit-P10 TRUE COPY OF THE COMMON ORDER DATED
10/08/2023 IN I.A. NO. 8/2023 &
I.A.NO. 13/2023 IN O.S. NO. 347/2007
OF THE 1ST ADDITIONAL SUBORDINATE
JUDGE'S COURT, ERNAKULAM
Exhibit- P11 TRUE COPY OF THE PLAINT IN
O.S.NO.347/2007 OF THE 1ST ADDL. SUB
COURT, ERNAKULAM.
Exhibit- P12 TRUE COPY OF THE WRITTEN STATEMENT
FILED BY THE 1ST DEFENDANT IN
O.S.NO.347/2007 OF THE 1ST ADDL. SUB
COURT, ERNAKULAM.
Exhibit- P13 TRUE COPY OF THE WRITTEN STATEMENT
FILED BY THE ADDL. 7TH DEFENDANT IN
O.S.NO.347/2007 OF THE 1ST ADDL. SUB
COURT, ERNAKULAM.