The Court reinforced the principle that admitting expert testimony is crucial in disputes concerning the authenticity of wills, particularly for validating signatures and thumb impressions.

ORDER :

(VIJAYKUMAR A. PATIL, J.)

This writ petition is filed challenging the order dated 22.06.2019 passed on I.A.No.32 filed in O.S.No.2564/2003 pending on the file of the XXIX Additional City Civil Judge, Bengaluru.

2. Heard.

3. Sri.Ashok B. Patil, learned counsel appearing for the petitioner submits that the petitioner filed a suit for partition and separate possession against the respondents. The respondents filed a written statement. In the written statement, there is a mention about the Will stated to have been executed by the deceased Smt.K.R.Seethabai in favour of the respondent No.1. The Trial Court framed the issues. The parties have adduced the evidence. It is submitted that the respondents examined the attesting witnesses to the Will and the advocate who claimed to have prepared the Will. The said witnesses have been cross-examined by the petitioner at length.

4. It is further submitted that the petitioner filed an application to refer Ex.D2-the alleged Will to the Authority mentioned in the application for obtaining a report with regard to the authenticity of the alleged signature and the left thumb impression of the alleged executant. However, the Trial Court, without considering any of these aspects rejected the application solely on the ground that the Will is required to be proved by the defendants. It is also submitted that the purported Will is marked as Ex.D2 in the evidence of defendant No.2-an advocate at Mandya who claimed to have drafted the said Will. It is contended that on the first page of the alleged Will, it is mentioned that it is prepared in the presence of the husband of Smt.K.R.Seethabai. However, in the cross- examination, DW-2 has stated that the Will was signed in the house of Smt.K.R.Seethabai and at that time, himself, Smt.K.R.Seethabai, Sri.P.M.Somashekar, Dr.B.K.Suresh and Sri.M.R.Prasanna Kumar were present. The said witness does not speak about the presence of the husband of Smt.K.R.Seethabai. In the cross-examination, DW-2 stated that he insisted LTM of Smt.K.R.Seethabai to avoid any problem regarding the identity. However, he states that he did not suggest for the registration of the alleged Will. Similarly, DW-3 claiming to be the attesting witness, stated in the cross- examination that at the time of signing of the Will, himself, Smt.K.R.Seethabai, lawyer Sri.S.Sudarshan, Sri.P.M.Somashekar and Sri.M.R.Prasanna Kumar were present. It is further contended that the written statement filed in O.S.No.4833/1996 does not speak anything with regard to the Will. It is also contended that DW-1 spoke with regard to the rituals referred at page 3 of the Will. He admits that his father died on 13.10.1992 and Ex.D2 is dated 25.05.1992. This evidence clearly indicates that the Will is fabricated. Now the attesting witnesses and the advocate who drafted the Will have been examined and the burden shifts on the plaintiff to disprove the same. Hence, it is necessary to send the disputed Will at Ex.D2 to the handwriting expert to compare the signature and the thumb impression on Ex.D2 with the sale deed marked at Exs.D1 and D4.

5. It is submitted that by securing the expert's view with regard to the disputed and admitted signature as well as thumb impression would aid the Trial Court to decide the controversy between the parties. In support of his contentions, he placed reliance on the following decisions:

(1) O.BHARATHAN Vs. K.SUDHAKARAN AND ANR. ,