K KUPPUSAMY Vs. PALANIAMMAL PAPPATH

JUDGEMENT

(1.) Despite service there is no representation for the second respondent.

(2.) The order of the Court below namely Principal Subordinate Judge, Erode, allowing the application to summon the original Will from another suit pending on the file of O.S. No. 603 of 1999 is under challenge.

(3.) It was a suit filed for partition by the respondents herein alleging that the father of the plaintiff, one Kaliappa Gounder died intestate. The prime defence that was taken by the first defendant was that the said Kaliappa Gounder executed a Will on 10.2.1989 and thus it was not correct on the part of the plaintiff to state that he died intestate. It is also admitted that P.W.1 was examined and the matter is part heard. At that juncture, the plaintiff/petitioner filed on application to send for the original Will filed in O.S. No. 603 of 1999 alleging that the said Will was written by a scribe, Mr. Kandasamy and that the Will dated 10.2.1989 now relied on by the first defendant alleged to have been written by Kandasamy was not at all written by him and for the purpose of showing to the Court that the said Will dated 10.2.1989 was not true and genuine, the said Will has to be summoned to the instant suit for the purpose of cross -examination of the son of the said scribe Kandasamy. It is also admitted that the said scribe Kandasamy died and in order to prove the writing in the Will dated 10.2.1989 relied on by the defence, the son of the said scribe, Kandasamy has to be examined by the defence side.