A. Indian Evidence Act, 1872—Sections 45, 68, 73
Will—Proof of Signature—Expert Opinion—Admissibility—Comparison of Signatures. The mode of proving a Will under Section 68 of the Evidence Act and Section 63(c) of the Indian Succession Act (requiring proof through attesting witnesses) does not bar the application of Section 45 (Expert Opinion) read with Section 73 (Court's power to compare signatures). The report/evidence of a handwriting expert on the testator's disputed signature is admissible as opinion evidence and a relevant fact, which may assist the Court in eliciting the truth, though it is not conclusive and cannot substitute the substantive evidence of the attesting witnesses.
Ram Narain v. State of Uttar Pradesh, (1973) 2 SCC 86 and Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529, referred to.
B. Code of Civil Procedure, 1908 (CPC)—Order 26 Rule 10A; Constitution of India—Article 227
Will—Dispute over Genuineness—Handwriting Expert—Trial Court Discretion. Where a plaintiff, in a partition suit, disputes the genuineness of two Wills (Exs. B2 & B7) relied upon by the defendants, the Trial Court's decision to allow an interlocutory application (I.A.) to send the disputed signatures to a handwriting expert for comparison with admitted signatures is a valid exercise of judicial discretion. Such an exercise, aimed at securing assistance to arrive at a just conclusion, is permissible and warrants no interference under the supervisory jurisdiction of Article 227 of the Constitution of India.
C. Indian Succession Act, 1925—Section 63(c)
Will—Proof—Nature of Expert Evidence. While the propounder must prove the Will by removing all suspicious circumstances, including doubts as to the genuineness of the testator's signature, the expert's opinion remains merely corroborative and a piece of opinion evidence; it does not bind the Court or supplant the primary requirement of proving execution through attestation.
* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
+ CIVIL REVISION PETITION NO: 343/2025
% .05.2025
# Matta Padma & 2 others.
……Petitioners
And:
$ Matta Venkata Rattaiah & 9 others
….Respondents
!Counsel for the petitioners : Sri Siva Prasad Reddy Venati
^Counsel for the respondent :
<Gist:
>Head Note:
? Cases referred:
1. AIR 1964 SC 529
2. AIR 1959 SC 443
3. AIR 1962 SC 567
4. (1973) 2 SCC 86
5. (2006) 13 SCC 65
6. (2012) 8 SCC 263
2025:APHC:20073
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
* * * *
CIVIL REVISION PETITION NO: 343/2025
DATE OF JUDGMENT PRONOUNCED: .05.2025
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments?
Yes/No
2. Whether the copies of judgment may be
marked to Law Reporters/Journals
Yes/No
3. Whether Your Lordships wish to see the fair
copy of the Judgment?
Yes/No
____________________
RAVI NATH TILHARI,J
2025:APHC:20073
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
CIVIL REVISION PETITION NO: 343/2025
ORDER:
Heard Sri Siva Prasad Reddy Venati, learned counsel for the
petitioners.
2. This Civil Revision Petition under Article 227 of Constitution of India has
been filed by the petitioners who are defendant Nos.6 to 8 in O.S.No.364 of
2010 pending in the Court of Principal Civil Judge (Senior Division),
Machilipatnam, Krishna District filed by the plaintiff/respondent No.1 herein.
3. The said suit was filed for partition of the plaint schedule properties
against the defendants/respondent Nos.2 to 10 and present petitioners.
4. In the said suit, the defendant Nos.5, 6 to 8 took a plea that the owner
of the property executed Wills in their favour with regard to the plaint schedule
property. Defendant Nos.5, 6 to 8 produced two different Wills said to be
executed by Matta Suryanarayana with respect to the plaint schedule property
and they were marked as Ex.B2 & B7 respectively.
5. The plaintiff/respondent No.1 herein filed I.A.No.858 of 2024, inter-alia
submitting that Matta Suryanarayana never executed any Will. He requested
to get the signature of the alleged Wills compared with the admitted signatures
of Matta Suryanarayana and prayed to send the alleged signatures on the
Wills Ex.B2 and B7 to compare with the admitted signatures to the expert.
2025:APHC:20073
6. The present petitioners along with defendant Nos.2, 10 to 12 objected
I.A.No.858 of 2024 and they filed the counters. The petitioners submitted that
the Will could not be sent for comparison and requested to dismiss the
petition. They also filed a memo along with the judgments on which they
placed reliance before the learned Trial Court.
7. The defendant Nos.3 and 9 were set ex-parte.
8. Learned Trial Court framed the following point for consideration:
“Whether the petitioner is entitled to seek the Court to send the Wills Ex.B2
and B7 allegedly executed by Matta Suryanarayana for comparison by the
handwriting expert with the admitted signature of Matta Suryanarayana?”
9. On consideration of the judgments on which reliance was placed,
learned Trial Court came to the conclusion that the plaintiff was disputing the
genuineness of both the Wills, as also signature thereon and as based on
those Wills Ex.B2 & B7, the defendants were claiming the property and
deciding the claim of the plaintiff, so, there being a serious dispute, it was safe
to take the assistance of the handwriting expert instead of the Court itself
examining the signature. Being of such an opinion it recorded that the
signature of Matta Suryanarayana required examination by the expert, I.A was
allowed. The petitioner therein i.e., plaintiff/respondent No.1 was directed to
file other admitted and contemporaneous signatures and hand writing of Matta
Suryanarayana, if any, to send to the expert for examination with the disputed
signature of Ex.B2 & B7.
10. Challenging the said order dated 22.01.2025, the present Civil Revision
Petition has been filed by the defendant Nos.6 to 8.
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11. Learned counsel for the petitioners submitted that the learned Court
ought not to have allowed I.A.No.858 of 2024 and ought not to have sent
Ex.B2 & B7 - Wills for comparison of signature of Matta Suryanarayana to the
hand writing expert with his admitted signature. He submitted that in the suit,
the Will is to be proved, as per the provisions of Section 63(c) of the Indian
Succession Act read with Section 68 of the Indian Evidence Act. Additionally,
the plaintiff has to remove the suspicious circumstances surroundings the
execution of Will. He submitted that in view of the legal provisions for proof of
Will the same could not be sent for expert opinion on signatures of testator.
12. I have considered the aforesaid submissions and perused the material
on record.
13. So far as the contention of the learned counsel for the petitioners with
respect to the proof of the Will is concerned, there can be no dispute that Will
is required to be proved as per the legal provisions of Section 68 of Indian
Evidence Act and Section 63 (c) of Indian Succession Act.
14. In Shashi Kumar Banerjee v. Subodh Kumar Banerjee 1
, the
Constitution Bench, of the Hon’ble Apex Court on the point of proof of Will,
referred to the cases of H.Venkata – Chala Iyengar v. B.N.Thimmajamma 2
& Rani Purnima Devi v. Khagendra Narayan Dev3
and held that the mode
of proving a Will does not ordinarily differ from that of proving any other
document except as to the special requirement of attestation prescribed in the
1
AIR 1964 SC 529
2
AIR 1959 SC 443
3
AIR 1962 SC 567
2025:APHC:20073
case of a Will by Section 63 of the Indian Succession Act. The onus of proving
the Will is on the propounder and in the absence of suspicious circumstances
surrounding the execution of the Will, proof of testamentary capacity and the
signature of the testator as required by law is sufficient to discharge the onus.
Where however there are suspicious circumstances, the onus is on the
propounder to explain them to the satisfaction of the Court, before the Court
accepts the will as genuine. Where the caveator alleges undue influence,
fraud and coercion, the onus is on him to prove the same. Even where there
are no such pleas but the circumstances give rise to doubts, it is for the
propounder to satisfy the conscience of the Court. The suspicious
circumstances may be as to genuineness of the signature of the testator, the
condition of the testator's mind, the dispositions made in the will being
unnatural improbable or unfair in the light of relevant circumstances or there
might be other indication in the will to show that the testator's mind was not
free. In such a case the Court would naturally expect that all legitimate
suspicion should be completely removed before the document is accepted as
the last will of the testator. If the propounder himself takes part in the
execution of the will which confers a substantial benefit on him, that is also a
circumstance to be taken into account, and the propounder is required to
remove the doubts by clear and satisfactory evidence. If the propounder
succeeds in removing the suspicious circumstances the Court would grant
probate, even if the will might be unnatural and might cut off wholly or in part
near relations.
2025:APHC:20073
15. However, the submission advanced is that, in view of those legal
provisions on proof of Will, the signature on Will could not be sent for
comparison, which cannot be accepted. The aforesaid provisions do not
create a bar for comparison of signature on the Will. Simply because the
mode of proof of the Will is provided by Section 63(c) of Indian Succession Act
and Section 68 of Indian Evidence Act, applicability of Section 45 of Indian
Evidence Act, in respect of the comparison of signature of the Will, in the view
of this Court, cannot be excluded.
16. In Shashi Kumar Banerjee (supra), the report of the expert with
respect to the signature on the Will of the testator was also submitted. The
Hon’ble Apex Court with respect to the report of the expert, observed and held
that the evidence of the expert is not conclusive and could not falsify the
evidence of the attesting witnesses as also the circumstances which went to
show that the Will must have been signed in 1943 as it purported to be. The
Hon’ble Apex Court held that the expert’s evidence as to handwriting is an
opinion evidence and it can rarely, if ever, take the place of substantive
evidence. Before acting on such evidence it was usual to see if it was
corroborated either by clear direct evidence or by circumstantial evidence. As
in the said case, it was found that all the probabilities were against the
expert’s opinion and the direct testimony of the two attesting witnesses, which
was accepted, was wholly in-consistent with expert opinion, in the
circumstances of that case, it was held that mere opinion of the expert could
not override the positive evidence of the attesting, witnesses.
2025:APHC:20073
17. So from Shashi Kumar Banerjee (supra), it is settled that the expert
evidence with respect to the signature on the Will, is merely an opinion
evidence, which cannot be substitute for the substantive evidence of the
attesting witness. The expert report/evidence is only an opinion evidence and
not conclusive. But, the opinion evidence though not binding on the Courts,
may be of assistance in the light of the other evidences led in the suit,
including the evidence of attestators, other witnesses and also the
circumstance evidence. It may also have a corroborative value. Even in
Shashi Kumar Banerjee (supra), the report of expert was not discarded on
the ground that it could not be called or submitted. Besides, Section 45 of the
Indian Evidence Act or any other provisions of Indian Evidence Act or of
Indian Succession Act, could not be shown creating a legal bar for comparison
of disputed signature on the Will.
18. In Ram Narain v. State of Uttar Pradesh4
, the Hon’ble Apex Court
held that expert opinion adduced in evidence has to be received with great
caution. But, this opinion evidence, is relevant, which may be worthy of
acceptance, if there is internal or external evidence relating to the document in
question supporting the view expressed by the expert.
19. Para No.6 in Ram Narain (supra) reads as under:
“In our view, the legal position enunciated in Fakhruddin’s case (supra) cannot
be said to be inconsistent with the ratio of any one of the earlier decisions to
which reference has been made therein. Now it is no doubt true that the
opinion of a hand-writing expert given in evidence is no less fallible than
any other expert opinion adduced in evidence with the result that such
evidence has to be received with great caution. But this opinion evidence,
which is relevant, may be worthy of acceptance if there is internal or
4
(1973) 2 SCC 86
2025:APHC:20073
external evidence relating to the document in question supporting the
view expressed by the expert. If after comparison of the disputed and the
admitted writings by the Court itself, when the Presiding Officer is familiar with
that language, it is considered safe to accept the opinion of the expert then the
conclusion so arrived at cannot be assailed on special leave on the mere
ground that comparison hand-writing is generally considered as hazardous and
inclusive and that the opinion of the hand-writing expert has to be received with
considerable caution. The question in each case falls for determination on the
appreciation of evidence and unless some serious infirmity or gave failure of
justice is shown, this Court would normally refrain from re-appraising the matter
on appeal by special leave. the Trial Court in this case agreeing with the
principle of law enunciated by this Court compared the relevant documents and
arrived at the conclusion that they have all been written in one hand. The
learned II Temporary Sessions Judge on appeal, after referring to the
comparison of the disputed and specimen writings by the Trial Magistrate,
himself compared those writings with the help of the expert's opinion and his
report and came to a definite conclusion "that the disputed hand-writings tally
with the specimen hand-writing". In the High Court also the learned Single
Judge, after referring to the decision in Fakhruddin casw (supra), observed as
follows :-
"I have myself made a comparison of the specimen writing of the
applicant with the writing contained in the two letters. I have not the least
doubt that the writing in the post-card and the writing in the admitted
writing of the applicant are the same. Thus, I have no reason to differ
from the finding recorded by the courts below."
20. In Baso Prasad v. State of Bihar5
, the Hon’ble Apex Court held that
opinion of an expert, is a relevant fact. The Court may, thus, take the expert
opinion into consideration. But, appreciation of evidence is the Court’s job.
21. Para Nos.37 & 38 in Baso Prasad (supra) read as under:
“37. Opinion of an expert, therefore, is a relevant fact. The court may, thus,
take the expert opinion into consideration. But appreciation of evidence is the
court's job.
38. It is, thus, for the court to arrive at an opinion as to which part of
contradictory expert opinion should be accepted or whether in a given
situation ocular evidence should be believed in preference to medical
evidence or vice versa.”
22. In Dayal Sing v. State of Uttaranchal6
, the Hon’ble Apex Court held
that the courts, normally, look at expert evidence with a greater sense of
5
(2006) 13 SCC 65
2025:APHC:20073
acceptability, but it is equally true that the courts are not absolutely guided by
the report of the experts, especially if such reports are perfunctory,
unsustainable and are the result of a deliberate attempt to misdirect the
prosecution.
23. Para No.35 in Dayal Singh (supra) reads as under:
“35. This brings us to an ancillary issue as to how the Court would
appreciate the evidence in such cases. The possibility of some variations in
the exhibits, medical and ocular evidence cannot be ruled out. But it is not that
every minor variation or inconsistency would tilt the balance of justice in favour
of the accused. Of course, where contradictions and variations are of a
serious nature, which apparently or impliedly are destructive of the substantive
case sought to be proved by the prosecution, they may provide an advantage
to the accused. The Courts, normally, look at expert evidence with a
greater sense of acceptability, but it is equally true that the courts are
not absolutely guided by the report of the experts, especially if such
reports are perfunctory, unsustainable and are the result of a deliberate
attempt to misdirect the prosecution. In Kamaljit Singh v. State of
Punjab {(2003) 12 SCC 155}, the Court, while dealing with discrepancies
between ocular and medical evidence, held:
“8. It is trite law that minor variations between medical evidence and
ocular evidence do not take away the primacy of the latter. Unless
medical evidence in its term goes so far as to completely rule out all
possibilities whatsoever of injuries taking place in the manner stated
by the eyewitnesses, the testimony of the eyewitnesses cannot be
thrown out”.”
25. Learned Trial Court has observed that the opinion of the expert does
not bind the Court. Though the Court itself can compare the disputed
signature with the admitted signature under Section 73 of the Evidence Act,
but it recorded that it would be safe to take the assistance of the hand writing
expert. Learned Trial Court recorded that immediately after getting the
documents marked by the defendant Nos.6 to 8, the plaintiff filed an
application for comparison of signature of Ex.B2 & B7 with the admitted
6
(2012) 8 SCC 263
2025:APHC:20073
signatures. The Court could look into the report of the expert if necessary for
comparison of signature. So, the Court could sent the documents for
comparison. This Court is of the view that if the learned Trial Court in its
wisdom considered it appropriate that the disputed signature of the Will be
sent for comparison to elicit the truth, but at the same time was also conscious
of the legal provision that the report of the expert is not binding on the Court
and may be only of assistance, there is no reason for this Court to interfere
with the exercise of such discretion by the learned Trial Court.
26. If the petitioners feel aggrieved from the finding recorded during trial,
they would have the remedy. But it is not the stage to submit that the disputed
signature could not be sent for comparison with the contemporaneous
signature of the testator.
27. The civil revision petition has no merit and is dismissed.
No order as to costs.
As a sequel thereto, miscellaneous petitions, if any pending, shall also
stand closed.
____________________
RAVI NATH TILHARI, J
Dated: .05.2025
Note: LR copy be marked
B/o.
AG
2025:APHC:20073
582
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
CIVIL REVISION PETITION NO: 343/2025
Dated: .05.2025
Note: LR copy be marked
B/o.
AG
2025:APHC:20073
