ORDER : (VIJAYKUMAR A. PATIL, J.) This writ petition is filed challenging the order dated 22.06.2019 passed on I.A.No.32 filed in O.S.No.2564/2003 pending on the file of the XXIX Additional City Civil Judge, Bengaluru. 2. Heard. 3. Sri.Ashok B. Patil, learned counsel appearing for the petitioner submits that the petitioner filed a suit for partition and separate possession against the respondents. The respondents filed a written statement. In the written statement, there is a mention about the Will stated to have been executed by the deceased Smt.K.R.Seethabai in favour of the respondent No.1. The Trial Court framed the issues. The parties have adduced the evidence. It is submitted that the respondents examined the attesting witnesses to the Will and the advocate who claimed to have prepared the Will. The said witnesses have been cross-examined by the petitioner at length. 4. It is further submitted that the petitioner filed an application to refer Ex.D2-the alleged Will to the Authority mentioned in the application for obtaining a report with regard to the authenticity of the alleged signature and the left thumb impression of the alleged executant. However, the Trial Court, without considering any of these aspects rejected the application solely on the ground that the Will is required to be proved by the defendants. It is also submitted that the purported Will is marked as Ex.D2 in the evidence of defendant No.2-an advocate at Mandya who claimed to have drafted the said Will. It is contended that on the first page of the alleged Will, it is mentioned that it is prepared in the presence of the husband of Smt.K.R.Seethabai. However, in the cross- examination, DW-2 has stated that the Will was signed in the house of Smt.K.R.Seethabai and at that time, himself, Smt.K.R.Seethabai, Sri.P.M.Somashekar, Dr.B.K.Suresh and Sri.M.R.Prasanna Kumar were present. The said witness does not speak about the presence of the husband of Smt.K.R.Seethabai. In the cross-examination, DW-2 stated that he insisted LTM of Smt.K.R.Seethabai to avoid any problem regarding the identity. However, he states that he did not suggest for the registration of the alleged Will. Similarly, DW-3 claiming to be the attesting witness, stated in the cross- examination that at the time of signing of the Will, himself, Smt.K.R.Seethabai, lawyer Sri.S.Sudarshan, Sri.P.M.Somashekar and Sri.M.R.Prasanna Kumar were present. It is further contended that the written statement filed in O.S.No.4833/1996 does not speak anything with regard to the Will. Similarly, DW-3 claiming to be the attesting witness, stated in the cross- examination that at the time of signing of the Will, himself, Smt.K.R.Seethabai, lawyer Sri.S.Sudarshan, Sri.P.M.Somashekar and Sri.M.R.Prasanna Kumar were present. It is further contended that the written statement filed in O.S.No.4833/1996 does not speak anything with regard to the Will. It is also contended that DW-1 spoke with regard to the rituals referred at page 3 of the Will. He admits that his father died on 13.10.1992 and Ex.D2 is dated 25.05.1992. This evidence clearly indicates that the Will is fabricated. Now the attesting witnesses and the advocate who drafted the Will have been examined and the burden shifts on the plaintiff to disprove the same. Hence, it is necessary to send the disputed Will at Ex.D2 to the handwriting expert to compare the signature and the thumb impression on Ex.D2 with the sale deed marked at Exs.D1 and D4. 5. It is submitted that by securing the expert's view with regard to the disputed and admitted signature as well as thumb impression would aid the Trial Court to decide the controversy between the parties. In support of his contentions, he placed reliance on the following decisions: (1) O.BHARATHAN Vs. K.SUDHAKARAN AND ANR., (1996) 2 SCC 704 (2) SANJAY K.SHETTY Vs. B.NARAYANA SHETTY , (2010) 4 KAR.L.J. 223 (3) B.NAGARAJAPPA Vs. SMT.BORAMMA AND ORS., ILR 2006 KAR 1080 (4) SRI SHADAKSHARAPPA V. KUMARI VIJAYALAXMI, ILR 2023 KAR 3983 (5) CHIKKANNA Vs. LOKESH AND ORS., ILR 2001 KAR 2681 6. It is further submitted that if the report is wrong, it is always open for the other side to object and cross-examine the expert and the report would be a tool for the Trial Court to decide the controversy between the parties. It is also submitted that the Trial Court, without considering the various contentions urged and the list of authorities cited in the written arguments, rejected the application by a cryptic order. Hence, he seeks to allow the prayers of the writ petition. 7. Per contra, Sri.Yeshwanth Nethaji N.T., learned counsel appearing for Sri.K.V.Narasimhan, learned counsel for the respondent No.1 supports the impugned order of the Trial Court and submits that Smt.K.R.Seethabai is the second wife of Dr.K.Ramachandra Rao and plaintiff No.1 is his first wife. Hence, he seeks to allow the prayers of the writ petition. 7. Per contra, Sri.Yeshwanth Nethaji N.T., learned counsel appearing for Sri.K.V.Narasimhan, learned counsel for the respondent No.1 supports the impugned order of the Trial Court and submits that Smt.K.R.Seethabai is the second wife of Dr.K.Ramachandra Rao and plaintiff No.1 is his first wife. It is the case of the petitioner-plaintiff that the suit schedule properties were purchased in the name of late Smt.K.R.Seethabai and the consideration was paid by the plaintiff No.1. The said assertion was denied by the respondent Nos.1 and 2. It is the case of the respondents that the said Smt.K.R.Seethabai has purchased the properties out of streedhana and the properties are the self-acquired properties. It is submitted that the deceased Smt.K.R.Seethabai executed a Will which was clearly referred in the written statement filed by the respondent Nos.1 and 2 and there is no occasion to suspect the Will as contended by the petitioner. It is further submitted that if the petitioner is able to prove issue No.1, the question of going into other issues would not arise. It is also submitted that the Will is of the year 1992 and the document sought to be compared is of the year 1966 which is not a contemporaneous document. Hence, there is no point in comparing the signature and thumb impression as it is bound to change by passage of time. It is contended that the conduct of the petitioner is also required to be seen as the plaint is amended in the year 2010. However, the application for appointment of the Court Commissioner is filed when the matter is posted for arguments which is nothing but abuse of process of law and to delay the proceedings. Hence, he seeks to dismiss the petition. 8. Sri.B.C.Venkatesh, learned counsel for the respondent No.8 submits that he would adopt the arguments advanced by the learned counsel appearing for the respondent Nos.1 and 2 and adds that in the additional written statement filed by the defendant No.1, there is a specific plea with regard to the Will and that sufficient evidence is available on record to answer the issue by the Trial Court. Hence, he seeks to dismiss the petition. 9. Hence, he seeks to dismiss the petition. 9. I have heard the arguments of the learned counsel for the petitioner, learned counsel for the respondent No.1, learned counsel for the respondent No.8 and perused the material available on record. I have given my anxious consideration to the submissions advanced on both the sides. 10. The petitioner filed O.S.No.2564/2003 seeking the relief of partition, separate possession and for other reliefs against the respondents. The respondent Nos.1 and 2 filed written statement contending that the schedule properties were the self-acquired properties of Smt.K.R.Seethabai who executed the testamentary disposition. The disputed Will was marked as Ex.D2. The material on record indicates that the parties have adduced their evidence to discharge their burden as per the issues framed in the suit. The defendant examined the attesting witnesses and the scribe of the document in question. When the trial was concluded, the plaintiff filed an application under Order XXVI Rule 10A and Section 151 of the Code of Civil Procedure, 1908 read with Sections 46 and 47 of the Indian Evidence Act, 1872, seeking to refer the disputed Will at Ex.D2 to the handwriting and forensic experts to find out the authenticity of the signature and the thumb impression of the testator of Ex.D2. The said application was opposed by the respondent Nos.1 and 2. The Trial Court, considering the same rejected the application on the ground that the issue No.5 saddles a burden on the respondents to prove the Will of Smt.K.R.Seethabai and the suit schedule properties are the self-acquired properties of Smt.K.R.Seethabai. Hence, the plaintiff-petitioner has no burden to prove the Will and the question of rebutting the evidence arises only when the respondents prove the Will. The Trial Court further observed that the matter is of the year 2003 which has already riped for arguments and rejected the application holding that there is no necessity to send the document to forensic laboratory as it will further delay the proceedings. 11. To appreciate the contentions of the parties, it would be useful to refer the decision of the Hon'ble Supreme Court in the case of O.BHARATHAN, referred supra. It was held that the Court can compare the disputed signature with the admitted signature under Section 73 of the India Evidence Act, when both the parties agree, otherwise it is prudent to obtain the opinion and assistance of an expert. It was held that the Court can compare the disputed signature with the admitted signature under Section 73 of the India Evidence Act, when both the parties agree, otherwise it is prudent to obtain the opinion and assistance of an expert. The Division Bench of this Court in the case of SANJAY K. SHETTY referred supra, held that the finding recorded by the Court without considering the expert's report is unsustainable. This Court, in the case of CHIKKANNA, referred supra, at paragraphs 9 to 12 observed as under: "9. Another question is, whether the Court below's order refusing to issue expert's commission for examination of signatures of testator on the documents suffers from jurisdictional error. A Court can be said to have acted illegally and with material irregularity when it passed an order without applying its mind to the material relevant provisions of law and the present case appears to be like that. Order 26 Rule 10A reads as under: “ Rule 10A. Commission for scientific investigation. (1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court the Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court. (2) The provisions of Rule 10 of this Order shall, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under Rule 9.” 10. A reading of this rule clearly indicates that any question arising in a suit involving scientific investigation which scientific investigation cannot be conveniently conducted before the Court and in case it appears necessary and expedient in the interest of justice to do so in order to do justice to the parties. The discretionary powers have been given to the Court to issue commission directing the commission to enquire into such question and report thereon to the Court. The discretionary powers have been given to the Court to issue commission directing the commission to enquire into such question and report thereon to the Court. It means that discretionary power has been given to be exercised if the conditions are shown to exist namely the case involves a quest in which requires scientific investigation and the scientific investigation if cannot be conducted in presence of the Court and in the interest of justice and for due and proper decision of the Court if it is necessary to issue the Commission, the Commission has to be issued. 11. In the present case, the dispute is about the genuineness of the signatures of the testator on the Will on the basis of which the defendant claims title. The question of signatures as to whether those signatures are of the testator and if admitted signatures have been produced, whether the signature in dispute is of the same person whose signatures are contained on any admitted document. This question has to be scientifically analyzed examined and considered and then hand writing expert has to give his opinion after scientifically testing the same. It requires a specialised skill and scientific knowledge to give opinion on that subject. So such a question can definitely be said to involve scientific investigation. When I so observe, I find support from a Division Bench decision also of the Orissa High Court in the case of Natabar Behera v. Batakrishna Das [ AIR 1987 Orissa 7.] . Hon'ble P.C. Misra, J. as he then was, placed to observe as under. “Scientific examination means ascertainment by observation and experiment critically tested systematised and brought under a set of principles. Comparison of a disputed signature with the admitted ones involves specialised skill based on study It, therefore, comes within the scientific investigation and cannot be done by a layman without having the scientific knowledge and specialisation on the subject.” 12. The Court below in the present case no doubt has been correct in opining that if probate is not obtained, the document may have to be proved in every proceeding where it is relied. But, that could not be the reason to refuse the application of the revision petitioner for appointment of an expert commissioner to compare the signatures on that Will, with the admitted signatures. But, that could not be the reason to refuse the application of the revision petitioner for appointment of an expert commissioner to compare the signatures on that Will, with the admitted signatures. The provisions of obtaining the probate may not be applicable to the cases of Wills executed by a Hindu, if the said Will does not come within the classes of the Wills specified in Section 57(a) and (b). Section 57 specifies the Wills to which provisions may apply are, the Wills made by any Hindus, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which were subject to the Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay or in cases where Wills are made outside those territories to the extent they relate to the properties situated within the limits of territories of Bengal, Madras and Bombay and not others. In the case of Srinivas v. K.V. Srinivasa Rao it has been laid down that, “A reading of Clause (a) of Section 57 read with Section 213 makes it clear that it could only apply to cases when the property or properties bequeathed are situate in the territories mentioned in Clause (a) of Section 57 of the Act.” It further laid it down that if properties and persons who may be Hindus are outside the territory mentioned under Section 57(a), the provisions of Section 213 are not attracted and on that basis, the Court held that provisions of Section 213 did not apply to the Wills like the present one." 12. This Court, in the case of SRI SHADAKSHARAPPA Vs. KUMARI VIJAYALAXMI , [ILR 2023 KAR 3983] , held that the Court should be liberal in considering the application for appointment of the Court Commissioner seeking opinion of the expert as the expert's opinion would aid the Trial Court to arrive at a just conclusion and also aid to assess the evidence on record in its proper perspective. 13. The petitioner filed an application seeking to refer Ex.D2 to the handwriting expert to find out the authenticity of the signature and thumb impression found on Ex.D2 by comparing with the admitted signatures at Exs.D1 and D4. 13. The petitioner filed an application seeking to refer Ex.D2 to the handwriting expert to find out the authenticity of the signature and thumb impression found on Ex.D2 by comparing with the admitted signatures at Exs.D1 and D4. In my considered view, the Trial Court has committed a grave error in rejecting the said application solely on the ground that the burden is on the respondents to prove the Will. The respondent Nos.1 and 2 have discharged the primary burden by adducing the evidence. Prima facie, it appears that the evidence of DWs-1 to 3 is inconsistent with regard to the contents of the Will. The petitioner is seriously disputing the execution of the Will at Ex.D2 alleging that the said Will is forged, however the burden is on the respondents to prove the Will and also that the suit schedule properties are the self- acquired properties of Smt.K.R.Seethabai. In my considered view, it would be appropriate to refer Ex.D2 and Exs.D1 and D4 to the handwriting expert and to secure the expert's report with regard to the signature and thumb impression of Smt.K.R.Seethabai on the admitted and disputed documents which would aid the Trial Court to answer the issues involved in the suit. In my considered view, no prejudice would be caused to the respondents, if the application is allowed and the opinion of expert is secured. The expert's opinion on the disputed document would aid the Trial Court to decide the authenticity of the Will in question. 14. In my considered view, the finding recorded by the Trial Court that the application is required to be rejected on the ground that the proceedings will be delayed and that the burden is on the respondents, is perverse in nature. Keeping in mind, the enunciation of law laid down by the Hon'ble Supreme Court and this Court, referred supra, I am of the considered view that if the expert's opinion is obtained on Ex.D2, it would aid the Trial Court to assess the evidence in its right perspective and arrive at a just conclusion on the lis between the parties. Keeping in mind, the enunciation of law laid down by the Hon'ble Supreme Court and this Court, referred supra, I am of the considered view that if the expert's opinion is obtained on Ex.D2, it would aid the Trial Court to assess the evidence in its right perspective and arrive at a just conclusion on the lis between the parties. Order XXVI Rule 10A of the CPC confers power on the Court to secure the report from the expert if the issue involved in the suit requires scientific investigation, which the Court cannot undertake during the trial or it cannot be placed before the Court by way of oral evidence by the parties to the proceedings. The Courts have time and again held that the power to order for commission to secure the expert's view is a discretionary power of the Court and the same is required to be exercised in a given case where the case involves quest, which requires scientific investigation. In the instant case, the dispute is with regard to the authenticity of the Will and the signatures and thumb impression on the same which requires scientific investigation. The report of the Commissioner would be a piece of evidence which would aid the Trial Court in deciding the contention of the parties with regard to the authenticity of the Will. 15. This Court in the case of SRI.SHADAKSHARAPPA referred supra has held that if the application seeking appointment of the Court Commissioner is rejected, it would amount to denial of permission to lead evidence. In the instant case, a specific assertion is made in the plaint with regard to the authenticity of the Will at Ex.D2 which has been denied by the respondents. The cursory look of evidence of the defendants indicates that there are some contradictions with regard to Ex.D2. Hence, it would be appropriate to secure the report of the expert with regard to the handwriting and the finger print. There is no dispute that by passage of time, the finger prints and the strokes in the signature are bound to change. However, the same is required to be looked into by the expert and their inputs are required to be furnished. Hence, the contention of the respondents that the document is not contemporaneous has no merit. 16. For the aforementioned reasons, I proceed to pass the following: ORDER (i) The writ petition is allowed. However, the same is required to be looked into by the expert and their inputs are required to be furnished. Hence, the contention of the respondents that the document is not contemporaneous has no merit. 16. For the aforementioned reasons, I proceed to pass the following: ORDER (i) The writ petition is allowed. (ii) The impugned order dated 22.06.2019 passed on I.A.No.32 in O.S.No.2564/2003 by the XXIX Addl. City Civil and Sessions Court, Bangalore is set aside. Consequently, I.A.No.32 is allowed. (iii) The Trial Court is directed to send the document to the handwriting expert as sought in the application, in accordance with law. No order as to costs.