The main legal point established is that the trial court has the discretion to appoint an Advocate Commissioner for obtaining an expert opinion on a disputed Will, and such a decision is not arbitrary or illegal.

1. This civil revision petition has been filed against the fair and decretal order, dated 6.11.2009, made in I.A.No.351 of 2009 in O.S.No.546 of 2004, on the file of the Second Additional Subordinate Court, Coimbatore.

2. It has been stated that the first respondent in the Civil Revision Petition had filed a suit, in O.S.No.546 of 2004, on the file of the Second Additional Subordinate Court, Coimbatore, praying for the relief of partition and separate possession of the properties in question. She had also prayed for the rendition of accounts, for mesne profits and for the appointment of a receiver.

3. After the petitioners had entered appearance in the suit they had filed their written statement, on 22.2.2005, disputing the claims made by the plaintiff in the suit. They had also marked a Will, as Ex.B-18, in support of their claim over the suit properties. The trial in the suit had commenced and P.W.1 had been examined, on 24.1.2007. Thereafter, the evidence of the plaintiff had been closed, on 28.8.2007. After the petitioners had examined their witnesses, the suit had been posted for arguments in the month of October, 2008. Thereafter, the first respondent herein had filed an application, in I.A.No.351 of 2009, to appoint an Advocate Commissioner to take the disputed Will, dated 9.3.1996, marked as Ex.B-18 to a Government Handwriting Expert, for comparison of the signatures of the testator, with the admitted signatures of late P.Velusamy found in the original thumb impression register, as well as in the filing sheet register pertaining to the pathway agreement, dated 21.12.1995.

4. It has been further stated that there was no necessity to get an expert opinion, with regard to the Will in question, as it is for the beneficiary under the Will to prove it, in accordance with the provisions of the Indian Evidence Act, 1872 and the Indian Succession Act, 1925. It has also been stated that the original Will cannot be sent out of the Court, for comparison. Further, irrespective of the opinion given by the expert, the concerned Court is bound to analyse the evidence adduced in respect of the Will, as per Section 63 of the Indian Succession Act, 1925. Instead the trial Court had allowed the application, on 6.11.2009, holding that no prejudice would be caused to the petitioners by sending the Will for an expert opinion.

5. The learned counsel appearing on behalf of the petitioners had relied on the following decisions in support of his contentions.

5.1. In Thiruvengadam Pillai Vs. Navaneethammal and another (2008(4) SCC 530), it had been held as follows:

"While there is no doubt that court can compare the disputed handwriting/signature/finger impression with the admitted handwriting/signature/finger impression, such comparison by Court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a Court compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the court finds that the disputed finger impression and admitted thumb impression are clear and where the court is in a position to identify the characteristics of fingerprints, the Court may record a finding on comparison, even in the absence of an experts opinion. But where the disputed thumb impression is smudgy, vague or very light, th