The appointment of a handwriting expert is necessary to clarify ambiguity in the evidence, and the report of the handwriting expert is not conclusive proof of the will's execution.

Petitioners are the plaintiffs and respondents 1 to 3 are defendants 1 to 3 before the trial Court. In this order for convenience, the parties are referred to their status before the trial Court.

2. Plaintiffs filed O.S.No.4507/1998 against the defendants herein and others for partition and separate possession of their share in the plaint schedule properties. The defendants 1 & 2 in their written statement have taken a specific contention that the common propositor S.T. Ambekar during his lifetime bequeathed the schedule properties under a will dated 14.09.1987. The plaintiffs denied the execution of the will. After completion of evidence on both the side, the plaintiffs filed an I.A. under Order 26 Rule 10-A CPC for appointment of handwriting expert as a Court Commissioner to compare the disputed signature on the will with that of the admitted signature of Ambekar. The trial Court under the impugned order rejected the application filed by the plaintiffs on two grounds. Firstly, on the ground that the burden of proving the will is on the defendants, therefore, the plaintiff need not take the trouble of sending the disputed signature on Ex.D2 to the handwriting expert. Secondly, by relying on a judgment by Kerala High Court in R. Saraswathy Vs. P. Bhavathy Ammal and another reported in AIR 1989 Kerala 228 that under Sec.68, 69 and 71 a procedure is laid down with regard to the proof of will and therefore there is no need for sending the disputed signature for an handwriting expert.

3. Heard arguments on both the side and perused the entire writ papers.

4. Ex.D2 is the will dated 14.09.1987 said to have been executed by S.T. Ambekar. The plaintiffs dispute the signature of S.T. Ambekar on the will Ex.D2. On the other hand, the attestors to the will deposed that in their presence S.T. Ambekar affixed his signature on Ex.D2. Sri. Varadarajan, learned counsel for the defendants relying on R. Saraswathy’s case contends that in the event of appointment of a handwriting expert and securing a report will result in conflicting of versions before the trial Court and therefore there is no need for appointment of a Court Commissioner. I decline to accept this contention of the learned counsel for the defendants. Under Sec.68, 69 & 71 of the Evidence Act, a procedure is laid down with regard to admission of a will in evidence. The evidence of attesting witness is not necessarily conclusive proof of the will. It is always open to give other evidence to rebut the evidence of attesting witnesses or to disprove their evidence. Merely because the scribe and attesting witness to the will have deposed that in their presence, the attestor affixed his signature in their presence is not the conclusive proof of the will. I am not inclined to subscribe to the view taken by the Kerala High Court in R. Saraswathy’s case.

5. The Supreme Court in the case of Fakhruddin Vs. the State of Madhya Pradesh reported in AIR 1967 SC 1326 held as under:-

“The writing may be proved to be in the hand writing of a particular individual by the evidence of a person familiar with the hand writing of that individual or by the testimony of an Expert competent to the comparison of hand writings on a scientific basis. A third method is comparison by the Court with the writing made in the presence of the Court of admitted or proved to by the writing of the person. Both under Section 45 and Sec.47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. Where an expert’s opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court may acc