2009 (6) AIR Kant HCR 70 ::2009 (6) AIR Kar R 70 ::2009 A I H C 3655 ::(2009) 2 HinduLR 481 ::(2010) 1 CivLJ 178 ::(2010) 2 CurCC 117 ::(2009) 4 ICC 851 ::(2009) 4 KCCR 3062 ::(2010) 1 Kant LJ 41 ::(2010) 87 AllIndCas 476 (KAR)

Karnataka High Court

Hon'ble Judge(s): H. N. Nagamohan Das , J

( A ) Civil Procedure Code (5 of 1908) O. 26 , R. 10-A — Evidence Act (1 of 1872), Ss. 73, 68, 69, 71, 45 — Appointment of Commissioner for comparing signature — Execution of Will — Merely because attesting witnesses deposed that attestator had affixed signature in their presence, it is not a conclusive proof of will — Defendant relied on alleged Will and plaintiff denied signature of testator — Appointment of Commissioner can be allowed — Fact that procedure is laid down under Ss. 68, 69, 71, of Evidence Act with regard to admission will, immaterial. AIR 1989 Kerala 228, Dissented from. ILR 2009 Kar 87, AIR 1967 SC 1326, 2007 (1) AIR Kar R 467, Relied on. (Paras467)

( B ) Civil Procedure Code (5 of 1908) O. 26 , R. 10-A, Evidence Act (1 of 1872), S. 45 — Report of Commissioner — Admissibility — Appointment of Commissioner for comparing signature in execution of Will — Though report of handwriting expert is not conclusive proof of execution of Will — Same may be read with other evidence on record.It is settled position of law that Court Commissioner cannot be appointed to collect evidence in a case. After completion of evidence on both side, if there is ambiguity in evidence so adduced, then Court may appoint a Commissioner for purpose of clarification of such an ambiguity. In instant case, evidence on record establishes fact that defendants relied on Will said to have been executed by testator. On other hand, plaintiffs denied signature of testator on Will. Therefore, there is ambiguity in evidence on record. In order to clarify such an ambiguity in evidence, report of Court Commissioner may be of some assistance to find out truth. Though report of handwriting expert is not conclusive proof of execution of Will but same may be read with other evidence on record. (Paras7)