Kerala High Court
Dr. T.J.James vs Sicily John on 9 February, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
WEDNESDAY, THE 4TH DAY OF JULY 2012/13TH ASHADHA 1934
OP(C).No. 2107 of 2012 (O)
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OS.85/2010 of PRL.MUNSIFF COURT, CHERTHALA
PETITIONER(S):
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DR. T.J.JAMES, AGED 50 YEARS
S/O.OUSEPH, THOTTUNKAL HOUSE, E.BUND ROAD
BEHIND WYTE FORT HOTEL, MARADU P.O., ERNAKULAM.
BY ADVS.SRI.M.S.UNNIKRISHNAN
SRI.K.SUNIL
SRI.NIJAZ P.Z.
RESPONDENT(S):
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SICILY JOHN, AGED 55 YEARS
D/O.OUSEPH, THOTTUNKAL HOUSE, KANNANKARA P.O.
THANNEERUMUKKOM, CHERTHALA, TALUK
ALAPPUZHA DISTRICT.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04-07-2012, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 2107/2012
APPENDIX
PETITIONER(S) EXHIBITS
EXHIBIT-P1. PHOTOCOPY OF THE PLAINT SUBMITTED BY THE PETITIONER DATED
09.02.2010.
EXHIBIT-P2. PHOTOCOPY OF THE WILL SUBMITTED BY THE PETITIONER BEFORE THE
MUNSIFF'S COURT, CHERTHALA DATED 24.07.1992.
EXHIBIT-P3. PHOTOCOPY OF THE WRITTEN STATEMENT SUBMITTED BY THE
RESPONDENT DATED 18.5.2010.
EXHIBIT-P4. PHOTOCOPY OF THE COMMISSION AND A REPORT SUBMITTED BY THE
COMMISSIONER.
EXHIBIT-P5. PHOTOCOPY OF THE SECOND REPORT SUBMITTED BY THE ADVOCATE
COMMISSIONER.
EXHIBIT-P6. PHOTOCOPY OF THE CERTIFIED COPY OF WILL OBTAINED BY THE
PETITIONER.
EXHIBIT-P7. PHOTOCOPY OF THE WITNESSES LIST SUBMITTED BY THE PETITIONER.
EXHIBIT-P8. PHOTOCOPY OF THE I.A.NO.247/2012 IN O.S.NO.85/2010 DATED 18.1.2012
BEFORE THE MUNSIFF'S COURT, CHERTHALA.
EXHIBIT-P9. PHOTOCOPY OF THE ORDER IN I.A.NO.247/2012 IN O.S.NO.85 OF 2010
DATED 8.3.2012 OF THE PRINCIPAL MUNSIFF'S , CHERTHALA.
RESPONDENTS' EXHIBITS : NIL
/TRUE COPY/
P.A. TO JUDGE.
V. CHITAMBARESH, J
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OP(C) NO. 2107 OF 2012
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Dated this the 4th day of July, 2012
JUDGMENT
The plaintiff in a suit for declaration and for consequential injunction is the petitioner. The petitioner relies on a 'Will' alleged to have been executed by his father. A photostat copy of the 'Will" has been produced along with the plaint. The certified copy of the 'Will' has been marked as Ext.A2. The registration copy of the 'Will' summoned from the office of the Sub Registrar was marked as Ext.X1.
2. The court below has by the order impugned held that the photostat copy of the 'Will' cannot be marked in evidence. It is neither a primary nor a secondary evidence. Reference in this connection to the decisions in Ram Suresh Singh Vs. Prabhat Singh [(2009) 6 SCC 681] and Srihari Vs. Prakash [(2010) 14 SCC 460] are apposite.
3. But then there is no inhibition to refresh the memory of the attesting witnesses by using the photocopy of the 'Will'. This is especially so since the photocopy has already been produced along with the plaint. The petitioner 2 OP(C) No. 2107/2012 points out that neither Ext.A2 nor Ext.X1 reflects the signature of the witnesses. The court below can permit the petitioner to make use of the photostat copy of the 'Will' for the limited purpose of refreshing the memory of witnesses. The order of the court below is affirmed subject to the above reservation.
The Original Petition is disposed of as above.
V. CHITAMBARESH JUDGE ncd