JUDGMENT Dev Darshan Sud, J. This is the plaintiff’s appeal against the judgment and decree passed by the learned Additional District Judge-II, Kangra at Dharamshala dismissing the suit of the plaintiff praying for a decree of declaration that the plaintiff is owner in possession of the property comprised in khata No.12, khatauni Nos. 16 to 32, khasra No.. kitas 61, area 3-02-29 hectares to the extent of 1/10th share i.e. area 0-30-22 hectares, khata No. 13, khatauni No.33 to 37, area 0-49-79 hectares, khata No.14, khatauni Nos. 38 to 41, khasra kitas 8 area 1-44-44 hectares, to the extent of 1/10th share i.e. area 0-14-44 hectares, khata No.16, khatauni No.50,khasra kitas 3 area 8-22-16 hectares to the extent of 1/30th share i.e. area 0-27-40 hectares and khata No. 18, khatauni No. 52 khasra kitas 6 area 2-73-39 hectares to the extent of 110th share i.e. land measuring 0-27-33 hectares as per jamabandi for the year 1987-88 of Mohal and Mauja Rail, Tehsil Jaswan, District Kangra and Maraba No.159/35 in Chak No. 10-P situated in Tehsil Anoop Garh, District Sri Ganga Nagar, Rajasthan, land measuring 0-01-32 hectares i.e. 168-100800 shares of land entered in khata No.66 khatauni No. 79, khasra Nos. 174, 175, 176 and 177 kitas 4 measuring 0-79-23 hectares. Jamabandi 1993-94, situated in Mohal Banurri, Tehsil Jaswan, District Kangra, H.P. and land measuring 236 Kanals 05 marlas i.e. 1/10th share of land entered in khata No. 8, khatauni Nos. 31 to 49 khasra kitas 171 measuring 2362 kanals 14 marlas, jmabandi 1960-61 tika and Mauja Ghai Tehsil Dehra, District Kangra and leand measuring 0-28-41 hectares i.e. 30240 share of land out of 302400 share entered in khata No.2, Khatauni No.2, khasra No. 229-235 kita 2 jamabandi 1993-94 situated in Mohal and mauja Bas-lehar, Tehsil Dehra, District Kangra and any other property owned and possessed by Smt. Sansar Devi wd/o Sant Ram, on the basis of will dated 16.3.1989 with permanent injunction restraining the defendants from interfering in the ownership and possession of the plaintiff in any manner or claiming any rights whatsoever over the estate of Smt. Sansar Devi widow of late Shri Sant Ram on the basis of any forged and fictitious will. 2. The plaintiff’s pleadings are that he is the son of the brother of Smt. Sansar Devi widow of Shri Sant Ram, who was absolute owner in possession of the suit land as noted supra. 2. The plaintiff’s pleadings are that he is the son of the brother of Smt. Sansar Devi widow of Shri Sant Ram, who was absolute owner in possession of the suit land as noted supra. She was issueless and died on 27.8.1990. She had been widowed at a very young age and after the death of her husband, she started living all alone. When she was in her advanced years, the father of the defendants Shri Gian persuaded her that she would require their services and in this event the property should be willed away to them. Accordingly, will dated 2.4.1974, Ex.PW2/A was executed in favour of the defendants. Immediately thereafter, Gian Chand, father of the defendants left the testatrix at the house of Shri Karam Chand, father of the plaintiff in Village Rauli and since 1975 and till the date she died, she had been living in the house of her brother. During this period the plaintiff and his father Shri Karam Chand have been caring her and administering to her needs and it was under these circumstances that a registered Will dated 16.3.1989, Ex.PW4/A was executed by her in favour of the plaintiff. This will was her last Will and testament having been executed by her of her own free will and volition. The Will pertains to her entire estate. Her last rites were performed by the plaintiff. Thereafter the plaintiff presented the will Ex.PW4/A to the revenue authorities and requested them to make necessary changes in the revenue record. This fact came to the knowledge of the defendants, who forged and fabricated another false Will dated 14.3.1990, Ex.DW2/A in collusion with the scribe and attesting witnesses. It was pleaded that the Will dated 2.4.1974 was executed under fraud and coercion etc., that is why it necessitated the execution of the only valid will Ex.PW4/A, 16.3.1989 the Will dated 14.3.1990, Ex.DW2/A is also fabricated and was prepared after the death of the testatrix Smt. Sansaro Devi. 3. The defendants have contested the suit on the ground that the Will dated 14.3.1990, Ex.DW2/A was executed in favour of the defendants at Anupgarh, District Siri Ganga Nagar, Rajasthan by Smt. Sansaro Devi which was the last will and testament of the testatrix. 4. The learned trial Court settled 12 issues. 3. The defendants have contested the suit on the ground that the Will dated 14.3.1990, Ex.DW2/A was executed in favour of the defendants at Anupgarh, District Siri Ganga Nagar, Rajasthan by Smt. Sansaro Devi which was the last will and testament of the testatrix. 4. The learned trial Court settled 12 issues. The most important being as to whether a valid registered Will was executed on 16.3.1989 (Ex.PW4/A) in favour of the plaintiff by Smt. Sansaro Devi and whether the will dated 14.3.1990, Ex.DW2/A executed in favour of defendant Nos.1 to 3 was the last will of the testatrix Smt. Sansaro Devi. 5. The plaintiff examined 8 witnesses and that the defendants also examined 8 witnesses in all. Revenue record etc., was also tendered in support of respective cases of the parties. On the first three issues, which related to the validity of the Wills set up by the testatrix in favour of the parties to the suit, they were taken up and decided together. The learned trial Court, considers the evidence of plaintiff Shri Ramesh Chand, who appeared as PW2 and stated that Smt. Sansaro Devi was his Bua (Paternal aunt) and was issueless. She had been enticed by the defendants with the promise that they would look after her as a result of which they had got executed a registered a Will in the year 1974 with respect to her entire estate excluding Maraba (plot of land which was allocated to her as Pong dam oustee in Rajasthan). He states that he had been looking after the deceased after 1974 and she stayed with him till the date of her death. Her rights were also performed by him. Shri R.G. Aggarwal, Advocate was the scribe of the Will Ex.PW4/A. He states that the Will has been written at the instance of testatrix Smt. Sansaro Devi who thumb marked it in presence of marginal witnesses whereafter Sukh Dev (PW5) and Hoshiar Singh (PW-6) appended and affixed their signatures thereon. They also stated that the deceased had bequeathed the estate in favour of the plaintiff and that while such disposition was made she was in a fit mental state to do so. They corroborated the plaintiff on the aspect that they had been looking after her. They also stated that the deceased had bequeathed the estate in favour of the plaintiff and that while such disposition was made she was in a fit mental state to do so. They corroborated the plaintiff on the aspect that they had been looking after her. PW7 Shri Bishambar Singh, who remained Pradhan Gram Panchayat Rauli from 1987 to 1992 also corroborated the case of the plaintiff by stating that she used to live in the house of the plaintiff who used to look after and served her. The learned trial Court noticed the submissions as urged on behalf of the plaintiff that these witnesses have been subjected to lengthy cross-examination but there is no cross-examination of any of the witness regarding the fact that the plaintiff used to render service(s) during her life time nor the fact that she died at the house of the plaintiff. This, according to the learned trial Court was a pointer to the fact that the Will was genuine in nature. It was urged on behalf of the defendants before the learned trial Court that there was no mention in Ex.PW4/A about any cogent reason for revoking the previous Will Ex.PW2/A dated 2.4.1974. The decision of the Supreme Court in J.H. Vinkatachala Iyengar vs. B.N. Thimmaiamma and others AIR 1959 SC 443 was cited to urge on the principles governing validity/genuineness of the will propounded. 6. Second issue was with respect to the legality of the will dated 14.3.1990 Ex.DW2/A. The marginal witnesses to this will were Shri Manohar Lal, DW2 and Shri Jagjit Singh, DW 4. They have stated that this will was attested by Onkar Singh, DW3, Advocate, who was a Notary at Hanumangarh. According to him the will was read over and explained to the testatrix who accepted it true and correct and thereafter the marginal witnesses Shri Manohar Lal, DW1 and Jagjit Singh, DW4 had also signed it in his presence. He of course says that the register in which the entry was made with respect to this will has been misplaced. Two marginal witnesses Shri Manohar Lal, DW1 and Jagjit Singh, DW2 were known to him. Jagjit Singh was from Kangra and had settled in Rajasthan since the year 1972-73 pursuant to allotment of land having been made to him as Pong dam oustee. Two marginal witnesses Shri Manohar Lal, DW1 and Jagjit Singh, DW2 were known to him. Jagjit Singh was from Kangra and had settled in Rajasthan since the year 1972-73 pursuant to allotment of land having been made to him as Pong dam oustee. These witnesses have also been cross-examined at lengthy and the Court holds that there was nothing in their cross-examination to efface the validity/genuineness of the Will Ex.DW2/A. Shri H.C. Uppal, Advocate appeared as DW-5. He was the scribe of the Will Ex.PW2/A dated 2.4.1974. The learned Court then notes that “the factum as well as validity of the will has not been challenged by either of the party in this case.” Shri Om Prakash, DW6 proved Ex.DW6/A which the endorsement on the registered Will Ex.DW2/A. DW7 Shri Paras Ram proved electoral rolls Ex.DW7/A and Ex.DW7/B showing Smt. Sansaro Devi as duly registered voter. DW8 Shri Ravinder Singh proved the voter list of Panchayat Samiti Anupgarh, Ex.DW8/A showing the testatrix as voter with respect to Panchayat Samiti Anupgarh. In these circumstances, it was urged that Will Ex.DW2/A is a valid Will and is not fake and fictitious document. There was no occasion for Smt. Sansaro Devi to execute Ex.PW4/A. It was urged that no services were rendered by defendants after 1974 and that Ex.DW2/A dated 14.3.1990 was not presented before the Halqua Patwari immediately after the death of testatrix rather it was Ex.PW2/A which was presented which was a clear indicating establishing the forging of this instrument. 7. The Court holds that the pleadings and the evidence of the parties does not dispute the execution of Will Ex.PW2/A, dated 2.4.1974 which shows that the testatrix wanted to will away her entire estate to the defendants. The intention of Smt. Sansaro Devi in executing Will Ex.DW2/A revoking the previous Will Ex.PW4/A cannot be something which is unusual. The learned judge observed that best possible course for the plaintiff was to have the thumb impression on the Will Ex.DW2/A compared with the admitted thumb impression on Ex.PW2/A and it would not be proper for the Court to undertake this course of action on its own. The learned judge observed that best possible course for the plaintiff was to have the thumb impression on the Will Ex.DW2/A compared with the admitted thumb impression on Ex.PW2/A and it would not be proper for the Court to undertake this course of action on its own. Adverting to the fact as to the late production of the Will Ex.DW2/A before the Halqua Patwari, the learned Court holds that the plausible explanation for this fact is in paragraph 5 of the written statement where the defendants mentioned that latest Will Ex.DW2/A executed in favour of the defendants was lying with defendant Joginder Singh in Rajasthan and as it was not in possession of Jagroop Singh, defendant who had come to attend the last rites of Smt. Sansaro Devi. The learned Court holds that in these circumstances, the mere non filing of the Will at an early stage does not constitute a circumstance which would negate the genuineness of the Will. The suit was dismissed. The plaintiff is now in appeal. 8. In appeal an application under Order 41, Rule 27 of the Code of Civil Procedure being CMP no. 561 of 2001 was filed by the plaintiff/appellant, which was allowed on 20.4.2010 by this Court. This Court disposed of the application in the following terms: “………………………………………… The facts of the case clearly shows that three Wills have been proved in this case. First is dated 2.4.1974 in favour of the respondents, the second one is dated 16.3.1989 in favour of the appellant and the third under challenge is dated 14.3.1990 in favour of the respondents Ext. DW2/A. The thumb impression on this Will has been disputed by the appellant by filing a suit for declaration which was dismissed. The appellant did not file any application before the learned trial Court for comparison of the thumb impression of the disputed Will with earlier Will executed by the deceased in favour of the respondents. There is observation of the learned trial Court in this regard that no comparison can be done of the thumb impression by the Court and the plaintiff should have filed an application for sending the disputed Will for comparison to the Handwriting Expert. There is observation of the learned trial Court in this regard that no comparison can be done of the thumb impression by the Court and the plaintiff should have filed an application for sending the disputed Will for comparison to the Handwriting Expert. There is no ground to hold that the application does not deserve to be allowed except that it has been filed at a belated stage, but to settle the dispute once for all and in the interest of justice, it is required that thumb impression on the disputed Will should be compared with the admitted Will as mentioned above. In view of the above discussion, the application filed by the appellant is allowed subject to Rs.2000/- as costs, payable to H.P. High Court Bar Association Welfare Fund and the disputed Will Ex.DW2/A shall be sent to the Handwriting Expert along with the admitted Will dated 2.4.1974 allegedly executed by the deceased in favour of the respondents for comparison. The cost be deposited by the appellant and receipt be shown to Court. Both the parties agree that the comparison should be done by the Handwriting Expert of the State Government at Shimla and Will in question shall be sent to him for comparison subject to deposit of necessary charges within a period of two weeks. Thereafter, reference be made to the Handwriting Expert and the case be put up for hearing as and when the report is received. The applications stands disposed of.” 9. Additional evidence was led which consists of AW1 Shri Rahul Sharma, Inspector, In-charge of Finger Print Bureau, Bharari, District Shimla, H.P. He states that he has qualified All India Board of Finger Print Bureau Examination from Central Finger Print Bureau, New Delhi. He had received the papers for comparison and gave his detailed report Ex.AW1/A. In cross-examination he denied that the parcel was received unsealed. He then states that “I had mentioned in the report that unsealed parcel was received but it was closed with the gum and it was not open.” He states that he sent the photographs along with the report but did not produce the negatives in Court. According to him the thumb impression on the Will Ex.DW2/A on the side and at the back are smudged and on Will Ex.PW2/A, the thumb impressions on the back are also smudged. According to him the thumb impression on the Will Ex.DW2/A on the side and at the back are smudged and on Will Ex.PW2/A, the thumb impressions on the back are also smudged. The thumb impression of Ex.PW2/A at the bottom does not indicate whether that impression is of right hand or left hand nor on Will Ex.PW2/A he has indicated so. He then states “I had not taken the photographs of the thumb impression which are taken by the photographer/Finger Print Expert. One Shri Sanjeev Kumar, Finger Print Expert posted in the same office, had taken the photographs of the thumb marks. Prints were also taken by the photographer not by me. I have opined the report that it has not been mentioned if the thumb mark is of left had or right hand. The pattern of both thumb impressions was different, therefore, there was no necessity for further investigation since both were not of same thumb. There was no necessity of mentioning the delta and other characteristics. I have not mentioned the triangle or triradius in this particular case since the pattern was different. I checked but it was not mentioned as it was not required. I did not compare the loopradial or ulnar since the patterns are different and flow of the ridges are in different directions of both the prints. It is correct that loopradial and ulnar are different in respect of right or left thumb impressions. It is correct that the loop radial and ulnar will be different in pattern in respect of right and left thumb. There were ridge counts in the impression but I did not feel it necessary for the purpose of comparison. There was minutia also. Since the pattern were different, therefore, comparison of minutia was also not done. Ridges and minutia both are visible with the naked eye on Ex.DW2/A in respect of thumb impression on the bottom.” 10. Thereafter the respondents also produced one Shri Arvind Sud, Handwriting and Finger Prints Expert, Hoshiarpur. He states that he is M. Sc. in Forensic Science and have passed post graduation course in first Division from Punjabi University, Patiala in 1977. He had gained experience from various government laboratories. He has appeared as an expert in various courts at Punjab, Haryana, Chandigarh and Himachal Pradesh in more than 12,000 cases. He states that he is M. Sc. in Forensic Science and have passed post graduation course in first Division from Punjabi University, Patiala in 1977. He had gained experience from various government laboratories. He has appeared as an expert in various courts at Punjab, Haryana, Chandigarh and Himachal Pradesh in more than 12,000 cases. He then states that “In the present case I have examined and compared the questioned and standard thumb impression. The details of which have been given in my report Ex.RW2/A along with Annexures Ex.RW2/B Photographic chart, RW2/C negatives and RW2/D developed photographs, which have been sent by post through Registrar General from where a reference was received.” He was not cross-examined by learned counsel for the appellant but court question was put to him as to what would be the effect of genetic defect in a thumb impression. He replied that “The genetic defect may cause missing of some portions of the ridges in a thumb of a person but when loop is present, placing and formation of such loop would be as per my above statement.” This is the entirety of the evidence. 11. On the basis of this evidence, learned counsel appearing for the appellant urges that the case of the appellant stands established and the Will Ex.DW2/A is not the last Will/testament of the testatrix deceased Smt. Sansaro Devi. He placed reliance on the decision of the Supreme Court in Jaspal Singh v. State of Punjab, AIR 1979 SC 1708 to urge that: “8. …………….The Thumb impression of Tej Kaur on the alleged statement was sent to the expert who was of the opinion that this could not be the thumb impression of Tej Kaur. The science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. The report of Dr. K.S. Puri clearly demonstrates that the thumb impression on the statement Exhibit P-B was not that of Tej Kaur but was of some other woman who appears to have falsely represented to the Doctor that she was the mother of the deceased. This is supported not only by the fact that the thumb impression of Tej Kaur on the statement Ex. P-B was forged but also by the categorical statement of P.W. 6 wherein she denied having made any such statement before the Doctor. This is supported not only by the fact that the thumb impression of Tej Kaur on the statement Ex. P-B was forged but also by the categorical statement of P.W. 6 wherein she denied having made any such statement before the Doctor. The Doctor although examined as a witness in court was never made to identify Tej Kaur who was also one of the witnesses, nor was any application given by the accused that the Doctor should be called upon to identify Tej Kuar, P.W.6 in order to test the validity of the statement that it was really Tej Kaur who made the statement Exh. P-B before the Doctor. In these circumstances, therefore, the evidence of the Doctor does not appear to be of any assistance to the defence.” (pp.1709 &1710) 12. Learned counsel appearing for the respondents has also drawn my attention to the decision of the Andhra Pradesh High Court in Uttamchand Sarma v. Jasti Chinna Veerabhadra Rao, AIR 2004 A.P. 225 , relying upon the decision of the Supreme Court in Shashi Kumar v. Subodh Kumar, AIR 1964 SC 529 the Court hold: “8. From the judgment of the Apex Court it is clear that even if the documents as sought for by the petitioner herein are sent to a finger print expert and the finger print expert opines that all the documents are signed on a single day simultaneously but not on different dates as alleged by the respondent herein, no fruitful purpose would serve in view of the fact that ultimately the said evidence of the expert cannot override the positive evidence of the attesting witnesses. In the instant case, according to the learned counsel for the respondent, the attesting witnesses were examined as PWs 2 to 6 and they have supported the case of the respondent i.e. the plaintiff.” (p.227) 13. In Dulal Chandra Adak and another versus Gunadhar Patra and another, AIR 1998 Calcutta 150, the Court holds: “5. I have heard the respective submissions of both the parties. I have examined all the materials and evidence on record. As both the parties have agreed to that I should decide the suit itself by exercising my power under Order 42, Rule i read with 41, Rule 24 of the Code of Civil Procedure, I accordingly do so. I have heard the respective submissions of both the parties. I have examined all the materials and evidence on record. As both the parties have agreed to that I should decide the suit itself by exercising my power under Order 42, Rule i read with 41, Rule 24 of the Code of Civil Procedure, I accordingly do so. The reasons for exercising my power as above is that both the learned Courts below have relied on the evidence of the finger print expert and nothing else though the other evidence materials were available. The reasons of the learned appellate Court below is that no amount of oral evidence can outweigh the opinion of the expert in this regard. In my view this is absolutely wring approach under the law. The settled proposition of the law is just the reverse and that has been decided by the two decisions . Both the two decisions have settled that the evidence of the expert cannot outweigh the direct evidence. Moreover, the evidential value of the handwriting expert opinion is not a substantive one but a corroborative. The opinion of the handwriting expert can be taken Into consideration under the ordinary circumstances, when there is a clear and direct evidence for purpose of corroboration only: This proposition has been settled by the decision of the Apex Court of this country . In paragraph 21 of the said judgment it is amongst others held ".......... besides it is necessary to observe that experts evidence as to handwriting is known evidence and it can rarely, if ever, takes the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence.........,.;" In this case there is no clear direct evidence adduced by the plaintiffs/respondents as observed by me as aforesaid nor there is any circumstantial evidence exist which can take the help of the corroborative evidence of the finger print expert. In this case both the learned Court below even did not touch nor even consider the direct oral evidence. Both the learned Court below even did not discard the evidence adduced by the defendants of the attestation and execution. On these ground alone the judgment and order of the Courts below are liable to be set aside. In this case both the learned Court below even did not touch nor even consider the direct oral evidence. Both the learned Court below even did not discard the evidence adduced by the defendants of the attestation and execution. On these ground alone the judgment and order of the Courts below are liable to be set aside. After doing so I could have remanded the suit for trial but I have refrained myself from doing so as this is a suit of 1975. Accordingly, I have accepted the submission and agreement of both the parties to decide the suit itself.” (pp.151 & 152) 14. In Thiruvengada Pillai v. Navaneethammal & Anr., AIR 2008 SC 1541 , the Court holds: “15. 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 to 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 finger prints, the court may record a finding on comparison, even in the absence of an expert's opinion. But where the disputed thumb impression is smudgy, vague or very light, the court should not hazard a guess by a casual perusal. The decision in Muralilal (supra) and Lalit Popli (supra) should not be construed as laying a proposition that the court is bound to compare the disputed and admitted finger impressions and record a finding thereon, irrespective of the condition of the disputed finger impression. The decision in Muralilal (supra) and Lalit Popli (supra) should not be construed as laying a proposition that the court is bound to compare the disputed and admitted finger impressions and record a finding thereon, irrespective of the condition of the disputed finger impression. When there is a positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impressions. Further even in cases where the court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. Necessarily, the judgment should contain the reasons for any conclusion based on comparison of the thumb impression, if it chooses to record a finding thereon. The court should avoid reaching conclusions based on a mere casual or routine glance or perusal.” (p.1547) It is in the light of these settled legal propositions that the submissions made on behalf of the parties to be considered. 15. I first advert to the evidence led on behalf of the appellant which has been extracted supra. Adverting to the evidence of AW1 Shri Rahul Sharma, Inspector/Incharge of Finger Print Bureau, Bharari who has submitted his detailed report Ex.AW1/A, I find that though he states “hence it is opined beyond reasonable doubts that these both comparable prints are different. Life size photographs of above said both comparable prints are enclosed herewith”. In cross-examination he admits that the thumb impressions on Wills Ex.DW2/A and Ex.PW2/A are smudged. He also does not know whether the thumb impression is of right hand or left hand. He had not taken photographs of the thumb impression for comparison, which were taken by Shri Sanjeev Kumar, who has not been produced in evidence. Pattern of both the thumb impressions was different, therefore, no further investigation was required. There was no necessity of mentioning the delta and other characteristics. He had not mentioned the triangle or triradius in this particular case since the pattern was different. Pattern of both the thumb impressions was different, therefore, no further investigation was required. There was no necessity of mentioning the delta and other characteristics. He had not mentioned the triangle or triradius in this particular case since the pattern was different. I find that his approach to the entire case has been lackadaisical and he has not performed his duty as it is expected from an expert though the evidence of the respondents is that both the thumb impressions were not comparable. 16. In Godvarthy Bhashyakaracharyulu versus State of Andhara Pardesh, AIR 1960 A.P. 164, the Court holds: “(10). I have scanned the evidence of the expert. His statement before the Magistrate about the identity of the disputed impressions with the undisputed finger prints of the accused, gives no reasons for his view. Howe he came to that conclusion was never explained. He merely filed a list of common characteristics, about one of which was anything elicited in the examination-in-chief or even in the cross-examination. The Court totally failed in its duty of scrutinizing the evidence or making a comparison of the impressions personally. The Ipse Dixit of the expert was accepted and acted upon by the Court and the accused was convicted. The Sessions Court toll never discussed the question. In this state of things I felt it necessary to summon the expert and elicit some particulars about the reasons on which his conclusion was based. He brought a magnifying lens and after some difficulty was able to indicate 2 or 3 ridge characteristics as being common to the disputed and undisputed impressions. I have asked him as to what method he used for making comparisons. He confessed that he made no enlargement on the screen. In most of the impressions, the delta was missing and he himself admitted that core was indistinct and when one of the two fixed points is missing it can only be expected that one set of data is lacking. An equality in the number of ridges between the core and delta is one of the sure criteria for comparison. A similarity in the type-here, the loop- can carry no significance because all the millions of people inhabitating the world have their finger prints falling within 4 broad types- Arches, Loops, whorls and composites. Similarly in this respect his method cannot be a certain index. (14). A similarity in the type-here, the loop- can carry no significance because all the millions of people inhabitating the world have their finger prints falling within 4 broad types- Arches, Loops, whorls and composites. Similarly in this respect his method cannot be a certain index. (14). Again, the expert states that a commonness is about 4 or 6 ridge characteristics suffices for establishing identity. He quotes no authority for this. The characteristics were not brought specifically to the notice of the Court. The Court never verified the correctness of the conclusions of the expert.” (pp.165 &166). 17. In State of Madhya Pradesh versus Sitaram Rajput and others, 1978 Cr. L. J. 1220, Madhya Pradesh High Court holds: “9. The branch of finger print is now a highly developed and technical subject. The classification of finger prints is a science requiring much study and specialization in the subject. Therefore, a finger print expert is in a more advantageous position to compare finger prints and point out similarities or dissimilarities between two impressions by critical examination of the impressions. This was recognized by amendment of S. 45 of the Evidence Act in 1899, making opinion of finger print expert relevant as was the case with medical and hand writing experts S. 73 of the Act was also suitably amended, enabling taking of specimen thumb impressions for comparison. S. 510 of the Cr.P.C. was amended in 1955 to make the report of the Director of Finger Print Bureau admissible under that section. The Supreme Court in Phool Kumar v. Delhi Administration, AIR 1975 SC 905 : (1975 Cri LJ 778) has held that when neither the Court nor the prosecution or the accused filed any application to summon and examine the finger print expert as to the subject matter of his report, no objection can be taken at the appellate stage by the accused against his non-examination. 10. Majority of the High Courts have found that it cannot be laid down as a rule of law that it is unsafe to have conviction on the uncorroborated testimony of a finger print expert. The true rule seems to be one of caution. The Court cannot delegate its authority to the expert but has to satisfy itself as to the value to be given to the evidence of the expert in the same way as to the value given to any other evidence. The true rule seems to be one of caution. The Court cannot delegate its authority to the expert but has to satisfy itself as to the value to be given to the evidence of the expert in the same way as to the value given to any other evidence. The reasons given by the expert in arriving at the conclusion are ultimately to be weighed by the Court and satisfy itself about the correctness of the conclusion by c9mparison of the prints. The task of the Court becomes much easier when the finger print expert has taken enlarged photo prints of the disputed and specimen finger prints and marked the distinct points of similarities. Otherwise it becomes an uphill task to examine each and every individual prints with magnifying glass when there are large number of prints. If the enlarged photo prints are kept side by side and their markings compared, it becomes much easier to follow the reasonings of the finger print expert about points of similarities or dissimilarities and judge the correctness of his conclusion. In Emperor v. Sahdeo. (1907) 3 Nag LR 1: (5 Cri LJ 220) it has been observed: “The papillary ridges covering the bulbous points of the human finger and thumb with which finger impressions are produced, afford a surer criterion of identity than any other comparable bodily feature. Where it is proved by competent expert testimony that two such impressions, made at different times, however far apart, contain several points of agreement and no points of disagreement in their minutia, no further evidence is necessary to prove that they were made by the same finger.” 12. Shri Vinayak admits that the best course to follow is to prepare enlarged photographs of the disputed and specimen prints to the same scale. Then, on the photographs a line may be drawn to connect the centre and the junction points. The lines between the two points should now be carefully counted. The next step is to find out how many agreements in detail there are on either side of the drawn line, such as free ends, forks, ellipses, tongues and rods and to see how they are situated as regards their relative positions with one another. One should also verify that the general pattern is the same in both, but he clearly admits that he did not consider the pattern of the prints. One should also verify that the general pattern is the same in both, but he clearly admits that he did not consider the pattern of the prints. He has failed to take enlarged photographs of all the disputed prints which were subject to examination and comparison by him. He has not marked two fixed points nor drawn a line between the two points, nor he has counted the number of ridges in between. Although he admits that most of the disputed finger prints were quite legible, still he has only marked out six points of similarities in each of 12 enlargements of the disputed finger prints. His opinion is mainly based on the ridge characteristics which agree in nature and relative position. Perhaps, he has followed the instructions in the Finger Print Manual of M.P. State but in the Manual it is mentioned that 4 or 5 points of similarities might be sufficient it there are unusual peculiarities, though normally six points of similarities, four in sequence, are sufficient to justify a definite opinion being given. It is not the opinion of Shri Vinayak that any of these prints had unusual peculiarities nor he has stated that at least four points of similarities were in sequence. This apart he has contradicted his report in the cross-examination in respect of several items. About photo enlargement, Ex. P.126, he has mentioned that to the east of point No.3 there is westward bifurcation with no ridge intervening but in cross-examination he admitted that point No.4 is an end of a ridge. Similarly, with regard to photo enlargement, Ex. P.128, he has mentioned that point No.1 is end of a ridge and to the east of point No.3 and after the intervention of 3 ridges there is end of a ridge but in cross-examination he admitted that point No.1 is an upward bifurcation and is not end of a ridge and point No.4 is also bifurcation and is not end of a ridge. Under the circumstances, the prosecution has failed to prove beyond doubt that the thumb impressions on the muster-rolls are forged. The prosecution has also failed to show that no work, in fact, has been executed in respect of which these payments were made as per these 13 muster-rolls. We, therefore, find no reason to interfere with the acquittal.” (pp.1223-1225) 18. In Manepalli Anjaneyulu v. State of A.P., 1999 Cr. The prosecution has also failed to show that no work, in fact, has been executed in respect of which these payments were made as per these 13 muster-rolls. We, therefore, find no reason to interfere with the acquittal.” (pp.1223-1225) 18. In Manepalli Anjaneyulu v. State of A.P., 1999 Cr. L. J. 4375, the Court holds: “30. The approach of the learned Sessions Judge on this aspect does not appear to be sound. After finding that the photographs of the culprits were taken and they were published in the news papers, the learned Sessions Judge posed a question as follows: "But the question is whether the witness had any opportunity to see the said photos.?'' It is a though it was necessary for the accused to prove that the photographs were in fact shown to the accused. The very fact that the photographs were taken and they were published in the news papers, is a circumstance which discloses that there was abundance of opportunity for the witnesses to see the said photographs. Mere denial by the witnesses that they did not see the photographs of the accused cannot be taken at face value in such cases. The identification proceedings, Ex.P58, show that the accused did complain to the Magistrate at the time of the parade that their photographs were taken when they were in lockup and they were shown to the witnesses before they were remanded. Considering all these circumstances, the evidence of PWs.6, 13 and 25 as to identification of A3 to A7 must be held to be doubtful in value.” (p.4382). 19. I need not to burden the judgment with precedents as settled supra save and except that the duty assigned to the court is not to admit the evidence of an expert per se when it is found that the expert has not displayed the skill expected of him. In this case, the expert having been subjected to cross-examination eliciting serious doubts on his evidence, not producing negatives of photographs or photographer, the additional evidence, therefore, is of no help to the appellant. 20. The plaintiff of course in support of what is written Ex.PW4/A has produced PW3 Shri Khem Raj, Registration Clerk in Tehsil Office, Dehra, who states that the Will Ex.PW4/A has been registered in the Tehsil Office. The endorsements are not in his hand. 20. The plaintiff of course in support of what is written Ex.PW4/A has produced PW3 Shri Khem Raj, Registration Clerk in Tehsil Office, Dehra, who states that the Will Ex.PW4/A has been registered in the Tehsil Office. The endorsements are not in his hand. PW4 Shri Ram Gopal, Advocate states that he is the scribe of Ex.PW4/A. It was understood by the testatrix before she signed it. PW5 Shri Sukh Dev states that he know the deceased. Will Ex.PW4/A was scribed by Shri Ram Gopal, Advocate (PW4) on the instructions of the testatrix which will was read over and explained to her and thereafter it was signed by her. 21. It is not disputed that will Ex.PW2/A is an accepted document in evidence on record. It is two wills, namely, Ex.DW4/A and Ex.DW2/A which have to be considered. The suspicious circumstances urged before me is that the last will and testament has not been registered though it could have been done so as the office of the Sub Registrar was situated at the place where the testatrix last resided. It is urged that though registration of the will is not compulsory but since the previous document has been registered, this should and ought to have been registered. Second circumstances which is urged before me is that after the death of the testatrix, it was Will Ex.PW2/A which was produced before the revenue authorities for effecting changes in the revenue record and not the Will Ex.DW2/A. If the last testament was Ex.DW2/A then in that event it should have been produced before the revenue authorities. 22. On the evidence of attesting witnesses and the scribe of Ex.DW2/A, I hold that the veracity of the testimonies of their evidence has been established. The explanation for not producing the second Will Ex.DW2/A before the revenue authorities is explained satisfactorily. Adverting to the evidence of DW2, Manohar Lal, who was the Pradhan of Gram Panchyat Patroda in Rajasthan, he states that Smt. Sansaro Devi was resident of Village Patroada and he knows her. He is witness to Ex.DW2/A and had signed it in presence of testatrix, which was read over and explained to her and she made this disposition when her mental faculties were intact. She thumb marked the Will in token of acceptance of the testament. He had signed this in presence of other attesting witness DW 4 Shri Jagjit Singh. He is witness to Ex.DW2/A and had signed it in presence of testatrix, which was read over and explained to her and she made this disposition when her mental faculties were intact. She thumb marked the Will in token of acceptance of the testament. He had signed this in presence of other attesting witness DW 4 Shri Jagjit Singh. He also states that the defendant and their family were looking after the testatrix. DW-3 Shri Onkar Singh, who was a practicing advocate at Hanumangarh states that he was a notary and he had notarized the Will Ex. DW2/A. Smt. Sansaro Devi had thumb marked the Will Ex.DW2/A in his presence. He identified her thumb impression though he admits in cross-examination that the register with respect to the entry of the Will has been misplaced by him. DW4 Shri Jagjit Singh is resident of the colony where the defendants were residing. He belongs to Kangra and he settled there after allotment of the land by Rajasthan government. He also states that he was the scribe of the Will which had been readover to the testatrix which she admitted as being correct and had thumb marked it in his presence and that of DW2 Shri Manohar Lal. Thereafter they had put their signatures on it. The mental faculty of the testatrix was intact at the time of the disposition. In cross-examination he states that at the time when the Will was executed she was about 80 years. Although he has not mentioned her age in Ex.DW2/A. He was the scribe of the Will though has not written so in Ex.DW2/A. He denies the fact that there was any conspiracy between the defendants and the marginal witnesses. DW5 H.C. Uppal, practicing as an advocate at Dehra proved will Ex.PW2/A. I am not considering evidence of other witnesses with respect to Ex.PW2/A as that is an accepted document. It is these compete complaints which require adjudication. 23. In Ex.PW4/A she makes some mention that though she had executed a Will 14/15 years prior to the execution of this Will but the defendants are not caring and looking after her, therefore she cancelled it. She states that “jinohane mujhe viswas dilaya ki vah meri sewa karengi, tab maine aaj se 14/15 vars pahele ek vasiyat unke nam kar ki. Bad vasiyal fir vah mujhe mere bhai Karam Chand ke ghar chod gaye. She states that “jinohane mujhe viswas dilaya ki vah meri sewa karengi, tab maine aaj se 14/15 vars pahele ek vasiyat unke nam kar ki. Bad vasiyal fir vah mujhe mere bhai Karam Chand ke ghar chod gaye. Aur aaj tak koi sudh na li. Mera Makan bhe ukhad diya hai. Mere maraba ki aaye bhi vahi kha rahe hai. Aaaj tak ek paisa bhi mujhe na diya. Meri ichha hai ki un wali vasiyat mansukh kara kar dusary vasiyat apne bhai ke puter ken am kar dun. Translation: Who assured me that they would look after me. 14/15 years ago I executed a will in their favour. After the execution of the will they left me in the house of my brother Karam Chand and till today they have looked after or asked about my welfare even once. My house has also been pulled down. They were also appropriating income from Maraba (land) in Rajasthan and till today they have not given to her a single paisa. For this reason I revoke the previous will and executed this will in the name of my brother’s son. There is no evidence on record with respect to pulling down/destruction of the house or income from the land in Rajashtan which arouses the suspicion of this Court. 24. Adverting to Ex.DW2/A she states that “lekin pichhle vars mere bhai Karam Chand niwasi Rauli Tehsil Dasuha (Punjab) ne ristedari ka davab de kar mujh se ek vasiyat meri ichha ke virudh apne ladke Ramesh Chand ke hak main tehrir karva li thi. Jo aaj se hi nirast samjhi jave. Kyunki meri mayeke walo ne kabhi bhi meri seva chakri nahin ki auraa b meri jaydad ka lalch karte hain.” Translation: Last year my brother Karam Chand, resident of Rauli, Tehsil Dasuha (Punjab) pressurized me through relations as also other relatives and had executed one will against my will in favour of his son Ramesh Chand. I hereby revoke that will because my family from my mother side never cared for me and had always been lusting for my wealth. Recital then proceeds “Maine aaj tak sari duniyadari dekh li hai. Mere pati ka dehant huae karib 60 vars ho chuke hain. Chhoti avashta main he mere pati ka dehant ho gaya tha. Meri koi bhi apani aulad nahin hai. Recital then proceeds “Maine aaj tak sari duniyadari dekh li hai. Mere pati ka dehant huae karib 60 vars ho chuke hain. Chhoti avashta main he mere pati ka dehant ho gaya tha. Meri koi bhi apani aulad nahin hai. Pati ke marne ke uprant meri seva chakri Gian Singh v Gian Singh ke ukat tino ladke karte rahe hain. Ab Gain Singh ka dehant huae bhi karib aath sal ho chuke hain tab se le kar meri sewa chakri yeh tino pouter hi karte aaye hain. Himachal Pradesh main mere ghar ke sath hi Gian Singh ka ghar hain. Main kabhi Rali rahti hun kabhi 10 P me rahti hun. Gain Singh v Gain Singh ke ladki tino mujhe jivan nirvah ke liye pura kharcha dete hain. Aur apne parivar ki tarah hi main inke pas rahti hun. Maine kabhi bhi yeh mahsus nahin kiya aur na he Gian Singh ne apne jivan kal main aur aaj tak in pautron ne mujhe yah mahsus hone diya ki yeh mera apna parivar nahi hain.” Translation: I have seen the entire world. My husband died 60 years back. I had become widowed at a very young age and I have no children. After the death of my husband Gain Singh and his sons named above have been looking after me. Now Gain Singh has died 8 years ago and since then these three peoples were looking after me. My native house is at village Rauli in Himachal Pradesh. The house of Gain Singh is adjoining to that house. I some time stays in Rauli and some time in 10 P. Gain Singh and his three sons have been providing me expenses etc. and bearing all expenses and I live as member of their family with them. I have never felt and Gain Singh never let me feel so during his life time that I am not a member of their family. 25. The recitals in the Wills Ex.PW4/A and Ex.DW2/A have been considered in some detail. What they have been revealed is a ding dong battle between the parties in this appeal. It is in these circumstances, that the Wills Ex.PW4/A and Ex.DW2/A requires careful consideration of scrutiny coupled with the fact that both these Wills have been executed within a short interval. Both contain narratives of the parties looking after her and not fulfilling that promise. 26. It is in these circumstances, that the Wills Ex.PW4/A and Ex.DW2/A requires careful consideration of scrutiny coupled with the fact that both these Wills have been executed within a short interval. Both contain narratives of the parties looking after her and not fulfilling that promise. 26. The pleadings with respect to the Will in question are:- that after the Will Ex.PW2/A was executed on 2.4.1974 which did not grant the land at Rajasthan to the defendants, they left her in the house of her brother Shri Karam Chand (father of the plaintiff) in Village Rauli and till her death he has been serving her. The pleadings then proceeds:- “7. That at the time of mutation for the first time the defendants took the knowledge of last Will executed by Smt. Sansar Devi owner in favour of the plaintiff and then they prepared a forged and false Will in collusion with the scribe and the attesting witnesses dated 14.3.1990 purported to have been executed in Rajasthan and got a third Rapat Rojnamcha recorded and got their Rapat Rojnamcha recorded as Rapat No.175 dated 27.12.1990. Copy of Rapat Rojnamcha No.175 is also attached here with. 8. That Smt. Sansar Devi owner never executed any Will on 14.3.1990 in favour of the defendants as she never went to Rajasthan in the year 1990, as she was living with the plaintiff in his house in Village Rauli Tehsil Dasuya, District Hoshiarpur. And the Will produced by the defendants before the Revenue Officer (Tehsildar) Jaswan is forged, fictitious, false and prepared after the death of Sansar Devi with a design to grab the property of the plaintiff and the same deserves to be declared so by the decree for declaration. 8. That the original Will dated 16.3.1989 in favour of the plaintiff executed by Sansar Devi and the forged and false Will produced by the defendants and the relevant documents which are necessary and very material for the adjudication of this case are attached with the mutation case file pending before the Revenue Officer (Tehsildar) Jaswan, Hence the original mutation case file along with all the original documents is required to be summoned in this case. And an application for summing that file is being filed with the suit.” 27. In Mahesh Kumar (Dead) by LRS. Versus Vinod Kumar and others, (2012)4 SCC 387 , the Court holds: “30. And an application for summing that file is being filed with the suit.” 27. In Mahesh Kumar (Dead) by LRS. Versus Vinod Kumar and others, (2012)4 SCC 387 , the Court holds: “30. In Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369 the Court analysed the ratio in H. Venkatachala Iyengar's case and culled out the following propositions: - (Jaswant Kaur case, SCC pp.373-74, para 10) “1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty. 2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. 3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will. 4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. 5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator. 6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.” (pp.401 & 402) 28. In Milap Chand versus Nirmal Raj and others, 2007(1) Shim.LC 98 , this Court holds: “4. The subject matter of the controversy in this case revolves around the existence, execution, validity and correctness of two Wills. In Milap Chand versus Nirmal Raj and others, 2007(1) Shim.LC 98 , this Court holds: “4. The subject matter of the controversy in this case revolves around the existence, execution, validity and correctness of two Wills. Whereas plaintiffs-respondents No.1 to 4 accepted the fact in the plaint that Will dated 22nd August, 1989 (Ex.DW- 2/A) was actually executed by Tikmi Devi, testatrix, it was at the same time claimed that this Will was based upon fraud and misrepresentation. The plaintiffs further claimed in the plaint that Tikmi Devi, testatrix had executed a final Will on 15th April, 1990 (Ex.P1), through which she bequeathed her property in equal shares to the plaintiffs as well as defendant No.1-appellant. The plaintiffs accordingly had claimed that the mutation attested in favour of defendant No.1-appellant based upon Will Ex.DW-2/A was bad and should be set aside. 9. In so far as the challenge to the Will Ex.DW-2/A is concerned, the only averment is contained in para 4 of the plaint, which reads thus:- “That the defendants No.1 and 2, who are very quarrelsome nature, got the mutation No.2379 of Phati Soil, dated 27.7.91, attested in the name of the defendant No.1, on the basis of the alleged will dated 22.8.89, which was obtained by him playing fraud and mis-representation upon the deceased Smt.Tikami, and which will stands revoked, while the mutations of other phaties have also been got entered, though the same are not yet attested and on the basis of which the defendants since 27.7.91, have started denying the right, title or interest of the plaintiff over the suit land and threatening to dispossess and oust the plaintiff therefrom, for which the defendants have got no right, or interest. The plaintiff and defendant No.1 have inherited the estate of the deceased Smt.Tikami in equal share on the basis of the aforesaid last will barring the aforesaid two fields bequeathed in favour of the proforma defendant No.3. The plaintiff and defendant No.1 have inherited the estate of the deceased Smt.Tikami in equal share on the basis of the aforesaid last will barring the aforesaid two fields bequeathed in favour of the proforma defendant No.3. The plaintiff is not thus bound by the aforesaid mutation No.2379, attested against law and facts.” Order 6 Rule 4, CPC reads thus:- “4.Particulars to be given where necessary.- In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.” 10. No particulars of misrepresentation or fraud were provided either in para 4 or elsewhere in the plaint. Based upon this simple proposition the plaintiffs were estopped at the very threshold from even alleging or establishing that the Will Ex.DW-2/A was vitiated or was obtained by playing fraud and misrepresentation upon the deceased testatrix. …………………..” (pp.98 to 101). 29. The undisputed proposition of law is that the particulars of fraud and misrepresentation are to be pleaded and proved. The pleading is that testatrix had been left at the house of the plaintiff after the Will Ex.PW2/A was executed. No particulars of misrepresentation and fraud has been proved on record neither it has not been proved that she was taken to Rajasthan against her Will where she was detained and the document Ex. DW2/A was executed in stealthily by playing fraud. I have also noted the recitals in Ex.PW4/A which have not been established by evidence. In these circumstances, I find no merit in this appeal which is accordingly dismissed and cross-objections shall also follow the decision. No order as to the costs. 30. All pending miscellaneous applications also stand disposed of.