C.R.P.Nos.2764 & 2765 of 2016

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 21.02.2023

CORAM

THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN

C.R.P.Nos.2764 & 2765 of 2016

C.M.P.Nos.14164 & 14165 of 2016

K.R.Selvam

... Petitioner in

both C.R.Ps.

Vs.

1. Pappa @ Radha

2. G.Govindammal

3. K.R.Rameshkumar

4. K.Ramasamy

5. K.Venkatachalam

... Respondents in

both C.R.Ps.

Common Prayer :- Civil Revision Petitions filed under Article 227 of the

Constitution of India, to set aside the order dated 08.06.2016 in I.A.Nos.142

& 143 of 2015 in O.S.No.56 of 2011 on the file of the II Additional District

Munsif Court, Salem.

For Petitioner

: Ms.P.Veena Suresh

For Respondents

For R1 & R2

: Ms.N.Nathani

For Mr.T.S.Baskaran

For R5

: Mr.Durga Vijayakumar

For R3 & R4

: No appearance

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C.R.P.Nos.2764 & 2765 of 2016

COMMON ORDER

These Civil Revision Petitions have been filed as against the

order dated 08.06.2016 passed by the learned II Additional District Munsif,

Salem, in I.A.Nos.142 & 143 of 2015 in O.S.No.56 of 2011, thereby

allowing the petitions seeking appointment of the Advocate Commissioner

and to get hand writing experts opinion.

2.

The petitioner is the first defendant and the respondents 1 & 2

are the plaintiffs. The respondents 1 & 2 filed suit in O.S.No.56 of 2011 for

partition and declaration to declare the Wills dated 23.11.2003 and

05.10.2009 are fabricated, false and forged one and also to declare that the

release deed dated 17.09.2003 is null and void, with consequential

injunction not to alienate the suit properties. While pending the suit, the

respondents 1 & 2 filed applications seeking appointment of Advocate

Commissioner for taking the disputed Will dated 23.11.2003 and the

admitted document viz., the settlement deed dated 17.09.2003 and also for

comparing the disputed signature in the Will dated 23.11.2003 with

admitted signature of the deceased found in the Settlement deed dated

17.09.2003 and get hand writing expert's opinion from the Central Forensic

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C.R.P.Nos.2764 & 2765 of 2016

Science Laboratory, Hyderabad. Both the petitions were allowed and

aggrieved by the same the present Civil Revision Petitions.

3.

The learned counsel appearing for the petitioner would submit

that these applications were filed by the respondents 1 & 2 on the third

occasion in order to seek hand writing expert's opinion with regard to the

Will. The petitioner has claimed the suit properties through Will. Therefore,

the burden of proof is only on the shoulder of the petitioner and the

petitioner has to be prove the Will in the manner known to law. The hand

writing experts opinion would not held in any way to prove the Will or

disprove the same.

3.1.

She further submitted that already the respondents 1 & 2

claimed report from the private Forensic Laboratory and thereafter they also

filed another application to get hand writing expert's opinion in the

Government Forensic Science Laboratory, Chennai. Already they obtained

hand writing expert's opinion and without even filing any objection, on third

time, these applications seeking appointment of Advocate Commissioner in

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C.R.P.Nos.2764 & 2765 of 2016

order to obtain hand writing experts opinion from Central Forensic Science

Laboratory, Hyderabad. The Court below mechanically allowed the same

without considering the fact that already hand writing expert's opinion

obtained on the insistance of the respondents 1 & 2, without scraping the

earlier opinion, should not have appointed another Advocate Commissioner

in order to get third opinion from the hand writing expert.

3.2.

In support of her contention, she relied upon the the judgment

reported in AIR 1996 Mad 347 in the case of Vemba Gounder Vs.

Pooncholai Gound