CRP/2248/2023 of S.S.ASHOK KUMAR Vs S.S.SHANMUGA RAJASEKARAN on 13 October 2026

ORDER

This Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decreetal order passed in IA No.2 of 2021 in OS No.415/2014, dated 04.03.2023, on the file of I Additional District Court, Coimbatore, wherein the application filed by the 1st respondent/plaintiff under Section 45 of the Evidence Act r/w Order XVI Rule 10A of CPC, for sending the disputed Will for expert opinion, came to be allowed by the Court below.

2. Heard the learned counsel for the petitioners and the learned counsel appearing on behalf of the 1st respondent.

3. This Court carefully considered the submissions made on either side and the materials available on record. This Court also went through the order passed by the Court below.

4. The 1st respondent is the plaintiff who filed the suit in OS.No.415 of 2014, seeking for the relief of partition and for allotment of 1/3rd share in the suit property and to declare the Will dated 25.01.1995 as forged and fabricated document and not binding on the plaintiff and for other consequential reliefs.

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5. During the pendency of the suit IA.No.2 of 2021, was filed by the 1st respondent/plaintiff to send the disputed Will dated 25.01.1995 for expert opinion. This is in view of the fact that the plaintiff is questioning the very genuineness of the Will that is relied upon by the defendants. The Court below has allowed the said application and aggrieved by the same, the present CRP has been filed before this Court.

6. In the considered view of this Court, the issue that arises for consideration is as to whether a Will which is said to be a fabricated document, can be sent for expert opinion.

7. The above issue is no longer res integra and it is squarely covered by the earlier judgment of this Court in Periathal and Others .v. Gomathi and Another reported in 2018 5 LW 370. The relevant portions are extracted hereunder:

9. In this connection, he placed reliance upon the decision reported in (1988) 2 KLJ 512 (R. Saraswathy v. Bhavathy Ammal). Accordingly, on a perusal of the abovesaid decision, as outlined therein, the opinion of the expert as to the identity of the signature of the testator in the Will is not relevant and the position of law on the above aspects had been detailed in the above said authority as follows:

CRP No. 2248 of 2023 “Evidence Act, 1872, Sections 45, 68, 69, 70 and 71 - Will - Execution - Expert opinion-Opinion of an expert as to the identity of signature of the testator inn the Will is not relevant.” “7. It is in this backdrop the question whether the opinion of an expert as to the identity of the signature of the testator in the will is relevant to decide the issue, whether the will in dispute has validly been executed. When would the opinion of an expert be relevant, is stated in Section 45 of the Evidence Act. It provides that when the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to the identity of handwriting or finger-impressions, the opinions upon that point, of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger-impressions are relevant facts. The expert must necessarily be one who has acquired certain special knowledge, skill or experience in any science or art or profession. The opinion of an expert therefore is not relevant where the subject-matter of enquiry is not the pertaining to any of the matters enume??? under the section. In other words an expert witness may not be asked to state his opinion upon a question of fact which is the very issue that requires decision on other evidence, the production whereof is controlled, by the other provisions of the Evidence Act For instance an expert cannot be allowed to give bis opinion upon the construction of documents because this, being a matter of law, is a question solely for the court to decide. Concisely

CRP No. 2248 of 2023 stated: “It is only where the matter inquired of lies within the range of the peculiar skill and experience of the witness, and is one of which the ordinary knowledge and experience of mankind does not enable them to see, what inference should be drawn from the facts, that the witness may supply opinion as a guide”. Kennedy v. People, 39 NY 245 That means, the opinion of experts is not admissible in regard to matters upon which the court can form a judgment from other evidence and circumstances.

8. In regard to the execution of a will, the Court has to form a judgment from the evidence, the propounder may let in following the procedure prescribed under Sections 68, 69 and 71 of the Evidence Act. Even at the risk of repetition I would in this context refer to Section 63(a), according to which the first stage in the execution of the will can be accomplished by signing the will by adopting any one of the three methods namely, (1) the testator putting his-signature, (2) the testator putting his mark or some other person putting his signature in the presence of the testator and under his direction. That means in order to say that a will has validly been executed it is not necessary that it should contain the signature of the testator, but on the other hand it is enough if the testator affixes his mark or some other person signs the document in the presence of the testator and under his direction. And therefore, in a case where the expert opines that the signature seen on the will is not that of the testator but at the same time the execution has validly been proved, can the Court still hold that the will is not valid relying on the opinion of the expert in preference to the uncontroverted evidence proving the

CRP No. 2248 of 2023 execution of the will? My answer is no, because as already noted, under law to hold that a will is valid, it is the execution of the will within the meaning of Section 63, Succession Act that is required to be proved unlike in the case of an ordinary document where under Section 67, Evidence Act the signature should be proved. It may in this context be relevant to note that a propounder can possibly contend that the signature which is opined to be not that of the testator by the expert, in fact is not his signature but only a mark put by him within the meaning of Section 63(a), Succession Act. The Court therefore has no need to form an opinion on the question as to identity of the signature of the testator. This being the position in law, in my judgment, the opinion of the expert as to the identity of the signature of the testator in a will is not a relevant fact.

9. The learned counsel for the petitioner however, argues that the opinion of the expert may be relevant at least, to test the veracity of the testimony of the attestors. What the attestors are expected to speak under Section 68, Evidence Act is only the factum of execution of the will within the meaning of Section 63, Succession Act. They are not obliged under law to testify the identity of the signature of the testator. There is therefore no substance in this argument and hence rejected.”

10. In the light of the above said factors, when the revision petitioners being the propounders of the Will owe the duty to establish the genuineness of the Will in question as per

CRP No. 2248 of 2023 the requirements of law as provided under Sections 63 of the Indian Succession Act and 68 to 71 of the Indian Evidence Act, it is found that the opinion of the expert as such may not tilt the scales in arriving at that conclusion as to the authenticity of the Will in question. The same could only be firmly adjudicated based upon the evidence to be adduced by the revision petitioners as per the requirements of law. In such view of the matter, it is found that as rightly argued by the petitioners' counsel, the endeavour of the first respondent/plaintiff in subjecting the Will in question for expert's scrutiny may not loom large in determining the issues involved between the parties as regards the proof of the Will in question.

8. When it comes to a Will, what is required to be proved is the execution of Will and also to dispel the doubts raised on the genuineness of the Will which also includes fabrication of a Will. The entire burden of proof is upon the person who relies upon the Will to prove the Will and dispel the suspicious consideration surrounding that Will. This Court in the above judgment held that in such a situation, a Will need not be sent for expert opinion.

CRP No. 2248 of 2023

9. Apart from the above, the Apex Court in the recent judgment in Gopal Pathak v. Nitin Alias Pappu & Anr. dated 18.9.2026 has held that the Trial Court should not send the disputed documents for getting the opinion of the handwriting experts and the Court itself can compare he disputed document and the admitted document and form an opinion.

10. In the case in hand, since it involves a Will, the entire burden of proof is upon the party who is relying upon the Will and it is not necessary for the plaintiff to undertake this exercise.

11. In the light of the above discussion, the order passed in IA No.2 of 2021 in OS No.415/2014, dated 04.03.2023, on the file of I Additional District Court, Coimbatore, is hereby set aside and this CRP stands allowed. It is made clear that this Court has not given any clean chit to the disputed Will and this Court has only clarified that the entire burden of proof is upon the defendants not only to prove the Will but also to dispel the suspicious circumstances surrounding the Will which includes the alleged fabrication of Will as per the case of the plaintiff.

12. In the result, this Civil Revision Petition is allowed in the above terms.

CRP No. 2248 of 2023 No costs. Consequently, connected miscellaneous petition is closed. 13-10-2026 Index:Yes/No Speaking/Non-speaking order Internet:Yes Neutral Citation:Yes/No kp To I Additional District Court, Coimbatore.

CRP No. 2248 of 2023 N.ANAND VENKATESH J. kp CRP No. 2248 of 2023

13-10-2026