The Court has the discretion to appoint a handwriting expert to assist in determining the genuineness of a signature, but the opinion of the expert is not binding on the Court. The Court may compare the impugned signature with admitted or proved signatures to ascertain its genuineness.

( 1 ) MR. Bhattacharya's clients have preferred the instant appeal against the judgment and order granting probate of a document said to be the last testamentary instrument executed by one Binoy Krishna Das. By this document, Mr. Roychowdhury's client, Smt. Kalpana Das, had been appointed the executirx to obtain probate of the said document. Mr. Bhattacharya's clients contested the application for grant of probate alleging that the said document was not genuine and it was further alleged that the same was not validly and lawfully executed by the said testator who had no testamentary capacity and was not in a position to execute any document. It is also stated by both the parties that after execution of the said document, one of the properties dealt with in the Will, was also gifted by executing a registered deed of gift in favour of the executrix. We are told that the legality, validity and execution of the said deed of gift has also been challenged by Mr. Bhattacharya's clients by filing a regular civil suit and the same is pending.

( 2 ) BEFORE the learned Court below, the appellants before us made an application for appointment of handwriting expert for examining the signatures put on the documents. However, the said application was rejected by the learned Trial Judge by order dated 20th of September, 1997 concluding that the signature of the testator, Binoy Krishna Das, on the deed of partition did not differ from the signature that appeared on the original Will. The learned Judge was convinced that both the signatures appearing on both the documents were by the same person and he thought it redundant to refer the matter for being examined by a handwriting expert. Hence, the application under Order 26 Rule 10 of the Code of Civil Procedure was rejected.

( 3 ) THE appellants before us, being dissatisfied with the said order dated 20th of September, 1997 of the learned Judge, filed a revisional application in this Court. His Lordship Hon'ble Justice Tarun Chatterjee, as His Lordship then was was pleased to dispose of the said revisional application by an order dated 2nd of December, 1997 which is set out hereunder:

"the revisional application is rejected. There will be no order as to costs. However, it will be open to the petitioners to challenge the order in the event, the decree is passed against them in appeal. "

( 4 ) MR. Bhattacharya, appearing for the appellant, drawing our attention to the aforesaid order, passed by the Revisional Court, submits that his clients are entitled to raise question of genuineness of the signature as his client lost before the learned Court below on probate being granted. He submits, producing the original deed of partition, that a handwriting expert should be appointed to examine as to whether the signature of the testator was genuine or not. His further contention was that if the Court finds the signature being not genuine, obviously the application would fail and automatically the order of the learned Trial Judge would not be sustained.

( 5 ) ALTERNATIVELY, Mr. Bhattacharya urged that even assuming that the signatures were genuine even then execution and attestation of the Will has not been proved. The testimony of the so-called attesting witness, being pw-2, contains serious contradictions and in fact, he has contradicted himself in his own evidence. The impact of such contradiction is such that it dilutes all evidence adduced by other witnesses of the propounder.

( 6 ) MR. Roychowdhury, ably assisted by Mr. Probal Mukherjee for the respondent/propounder, submits that the learned Trial Judge at the interlocutory stage, had found that the signatures contained in the Will, upon comparing, tallies with the signature contained in the admitted document, namely, the deed of partition. In view of such finding, the learned trial Judge did not think it fit to appoint any handwriting expert to get an opinion. According to Mr. Roychowdhury, when the r