S.S.ASHOK KUMAR vs S.S.SHANMUGA RAJASEKARAN

1 CRP No. 2248 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13-10-2026
CORAM
THE HONOURABLE MR JUSTICE N. ANAND VENKATESH
CRP No. 2248 of 2023
and CMP No.13628 of 2023
CNR:{HCMA011041452023}
1. S.S.Ashok Kumar
2. A.Rathish Saravanan
Petitioner(s)
Vs
1. S.S.Shanmuga Rajasekaran
2.S.S.Vishnu Mohan
3.C.S.Ranjith
Respondent(s)
PRAYER
Petition filed under Article 227 of the Constitution of India, to set aside
the Fair order and decreetal order dt. 04.03.2023 passed in IA No.2 of 2021 in
OS No.415/2014, on the file of I Additional District Court, Coimbatore.
For Petitioner(s): Mr.T.N.Rajagopalan
For Respondent(s): Mr.N.Vanaraj for R1
For R1 and R2 – No appearance
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2 CRP No. 2248 of 2023
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
st
Court, Coimbatore, wherein the application filed by the 1 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
st
appearing on behalf of the 1 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.
st
4.The 1 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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3 CRP No. 2248 of 2023
st
5.During the pendency of the suit IA.No.2 of 2021, was filed by the 1
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:
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4 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
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5 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
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6 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
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7 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.
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8 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.
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9 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.
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10 CRP No. 2248 of 2023
N.ANAND VENKATESH J.
kp
CRP No. 2248 of 2023

13-10-2026
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