1. The plaintiff, in a suit for partition, filed an application to send the “will” set up in defence for examination by an expert to substantiate his allegations in the rejoinder filed. Admittedly the plaint schedule property belonged to late Madhavan. The defendant in the written statement contended that Madhavan had executed a "will" bequeathing the plaint schedule property in his favour. In answer to the said defence, the plaintiff filed the rejoinder challenging the execution of the "will". The plaintiff also disputed the signature of the testator found in the "will" and, inter alia, contended that the signature is a forged one. The application has been dismissed by the court below relying on the decision in R.Saraswathy Vs. Bhavathy Ammal & another [1988 (2) KLT 736] holding that opinion of the expert as to the identity of the signature is not a relevant fact. Challenging the said order the plaintiff filed this original petition under Article 227 of the Constitution of India.

2. Heard the learned counsel for the petitioner and the learned counsel for the respondents.

3. The learned counsel for the petitioner, relying on the decision of the Division Bench of this Court in Sumangala T.Pai Vs. Sundaresa Pai [1991 (1) KLT 246], submits that if there is anything suspicious in the signature, evidence of an attester of the "will" can be contradicted by an expert opinion. In fact, in the above said decision, the Division Bench of this Court disagreed with the view taken in Saraswathy’s case (Supra). However, this Court notice that above Division Bench decision had been reversed by the Hon'ble Supreme Court as per the decision reported in Sundaresa Pai vs. Sumangala T.Pai [2002 (1) KLT 32(SC)]. In this case, in the rejoinder filed by the petitioner, (copy of which was made available during arguments) and in the application for sending the "will" for expert opinion, the plaintiff specifically alleged that the signature of Late Mahadevan found in the “will” was forged one. The plaintiff in the application to send the “will” for expert opinion has also averred that there is a considerable difference in the signatures of late Mahadevan seen in the disputed “will”, when compared to Exhibit A2 and Exhibit B11. The Hon'ble Supreme Court in H.Venkitachala Iyengar V. Thimmajamma and others [AIR 1959 SC 443] after referring to Sections 45, 47, 67 and 68 of the Evidence Act held in paragraph 18 as follows:

“..........What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under S.67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law.........”

(emphasis supplied)

4. When a party to a suit alleges existence of certain facts, the court can draw no inference of its existence unless it is proved through the manner in which the Evidence Act is envisaged. Sections 45 to 47 provide that opinion of the handwriting expert is a