ORDER 26 RULE 10(2) -Evidentiary value of the Commissioner’s report — HELD, The report of the Commissioner once submitted to the Court, shall be evidence in the suit and shall form part of the record. It is not necessary that the said Commissioner’s report is to be marked as an exhibit in the case. Similarly, it is not necessary that the said Commissioner is to be examined, to prove the contents of the said report — However, if either of the parties do not accept the correctness of the Commissioner’s report, it is open for them to file their written objections opposing the said Commissioner’s report. In order to substantiate the said objections and to request the Court not to act on the Commissioner’s report, with the permission of the Court, they have been given an opportunity to examine the Commissioner personally in the open Court touching any of the matters referred to by him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation — FURTHER HELD, If the party is successful in discrediting the entire report or a portion of the report in respect of which he has grievance, the Court in its discretion may reject the report of the Commissioner — If the report is rejected in total, it is open to the parties to have one more Commissioner appointed for the very same purpose — Without marking the Commissioner’s report as exhibit, without the Commissioner being examined in the case, the said Commissioner’s report can be taken as evidence in the case — The trial Court was not justified in rejecting the Commissioner’s report on the ground that it was not marked and he was not examined.
(B) CODE OF CIVIL PROCEDURE, 1908 – ORDER 26 RULE 10(2) — Report and depositions to be evidence in the suit — Admissibility of an expert’s evidence — Criminal and Civil proceedings — HELD, In a criminal case if the prosecution relies on the expert’s evidence to prove the charges against the accused mere production of the said expert’s report into Court is not sufficient — If the prosecution relies on a report of the expert, not only the report is to be produced, the author of the report is also to be examined in the Court on oath and an opportunity should be given to the accused to cross-examine the said expert on the correctness of the report. It is only then the said evidence becomes admissible and not otherwise — FURTHER HELD, In a civil proceedings when an expert is appointed as a Commissioner by the Court at the instance of one of the parties to the proceedings, the Court may issue commission to such experts for the purpose of elucidating any matter in dispute directing him to make such investigation and to report thereon to the Court — The report of the commissioner/ expert prepared and submitted on the orders of the Courts stands on a totally different footing in the matter of admissibility than the report of an expert prepared at the instance of either of the parties of the suit or at the instance of the prosecution in a criminal case — Therefore, the expert becomes a Commissioner only when court appoints him under Order XXVI of the CPC. The expert is only a witness for the prosecution in a criminal case, and a witness for the party who appointed him in civil cases.
(C) THE INDIAN EVIDENCE ACT, 1872 – Evidence of finger impression — Admissibility — HELD, When the thumb impression on the disputed document is disputed, this science of finger prints aids and guides the courts in resolving the dispute, if an expert’s evidence is made available — The evidence of finger impression is admissible. But the person giving his opinion as in other cases must be an expert — FURTHER HELD, The Court is at liberty to use its own discretion and to affirm or to differ from the expert opinion. The evidence of an expert is in the nature of opinion evidence. It is advisory in nature. It is not conclusive. It is not substantive evidence. However, the Courts before acting on such an expert’s evidence insist corroborative evidence. It is not a rule of law. It is a rule of caution and prudence. The expert’s evidence should contain reasons. The Court should be careful in looking at such evidence and examining the same — Expert’s evidence would not become evidence automatically. The weight of the evidence is dependant on the correctness of the report, the reasons given and their expertise in the field.
(D) EVIDENCE ACT, 1872 – SECTION 67, 68 To 71 — Proof of execution of a document — HELD, Section 68 of the Evidence Act states that if a document is required by law to be attested, it shall not be used as evidence until 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 -FURTHER HELD, If the attesting witnesses are not alive, then Section 67 of the Evidence Act is attracted. If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting. Section 67 does not prescribe any particular mode of proof. In addition to usual modes, handwriting may also be proved by circumstantial evidence — The Judgment and decree of the Appellate Court is justified.
(E) INDIAN SUCCESSION ACT 1925, – SECTION 63 -Execution of unprivileged Wills — Clause (c) of Section 63 -Attestation under — Proof of Will — HELD, In so far as the proof of Will is concerned, even the Registration and non-denial of execution would not prove the Will ipso facto. It has to be proved by examining the attesting witness. If the attesting witnesses are not alive, then Section 67 of the Evidence Act is attracted — FURTHER HELD, If the attesting witnesses are not alive, persons who are well acquainted with the handwriting or signature of the attesting witness should be examined to prove the signature of the attesting witness. When the handwriting of a dead attesting witness have been proved, there is presumption of, in the absence of rebutting evidence, that they have witnessed the execution. When all the attesting witnesses are dead, requirement of law would be satisfied by any evidence showing that the document was executed in the presence of two attesting witnesses. Therefore, when attesting witness is not alive, the parties are not helpless and the law provides for proving the signature of the attesting witness also.
RSA is dismissed.
JUDGMENT
N. Kumar, J.
1. This is defendants’ second appeal against the judgment and decree of the lower appellate Court, which has decreed the suit of the plaintiffs for partition and separate possession of their l/3rd share in the suit schedule properties. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
2. Plaintiffs-1 and 2 and defendants-1 and 2 are brothers. Third defendant is the wife of the first defendant. The case of the plaintiffs is that suit schedule properties are joint family properties. It has got three portions abutting each other. Plaintiffs and defendants-1 and 2 are in joint possession of the same. After the death of their mother Gangawwa, misunderstanding arose between the parties. When the plaintiffs demanded their legitimate share in the suit schedule properties, the defendants flatly denied their right by showing a document styled as Will, which according to the plaintiffs is false, fabricated, concocted and bogus. On the basis of the alleged Will, the third defendant is attempting to get her name created in the Municipal records with the help of defendants-1 and2. Second defendant died on 17.01.2001 issueless and intestate. Therefore the plaintiffs have filed the present suit for their l/3rd share in the suit schedule properties.
3. Defendants contested the claim by filing detailed written statement. They contended that their father died 40 years back. He had no self acquired properties or ancestral properties. The suit schedule properties never constituted Hindu Joint Family Properties. In fact, they did not constitute joint family at all. Their specific case is that the deceased Gangawwa, their mother, during her lifetime worked hard and earned her livelihood. The first defendant helped her mother and out of her own funds she purchased the suit schedule property under a registered sale deed for a sale consideration of Rs. 500-00 from Ramachandra Dasharath Sattikar on 06.03.1964. On the date of purchase, the suit schedule property was numbered as TPC Teradal No. 541 which consists of open space and a house. She purchased the property in her name and the property stood in her name till her death. Therefore, it is her self acquired property. Smt. Gangawwa bequeathed the suit schedule properties in favour of the third defendant under a Will dated 26.01.1991. The said Will is legal, genuine and valid and it is her last Will. The third defendant and her husband nourished the deceased Gangawwa and looked after her affectionately during her life time till her death and therefore she bequeathed the schedule property exclusively to the third defendant. Therefore, the contended that plaintiffs have no right over the suit schedule property and are not entitled to 2/3rd share. Therefore, they sought for dismissal of the suit.
4. The trial Court framed the following issues:
1a) Whether defendant No. 3 proves that the deceased Gangawwa has bequeathed suit property in her favour in sound disposing state of mind, voluntarily, and the said will is legal and valid?
1b) Whether the plaintiffs prove that, the suit property is available for partition and they together have 1/3rd share in it?
2) Whether the plaintiffs are entitled to get the declaration sought for?
3) Whether the valuation made and C.F. paid is not proper and not sufficient?
4) Whether the plaintiffs are entitled to get the separation of share sought for?
5) Whether the defendants are entitled to get the compensatory cost sought for?
6) What order or decree?
Addition issue
1) Whether the defendants proves that alternatively they have perfected title over suit property by adverse possession as claimed in para-7 of additional W.S.?
5. The second plaintiff was examined as P.W-1 and they examined one witness as P.W-2. They produced two documents, which were marked as Exs.P-1 and 2. On behalf of defendants, the third defendant was examined as D.W-1 and she examined the scribe and another witness who is said to have been present at the time of execution of the Will, as D.Ws-2 and 3. They produced 12 documents, which are marked as Exs.D-1 to D-12. On an application made by the plaintiffs, the handwriting expert was appointed as Commissioner to compare the signatures found on the Will with the admitted signatures of deceased Gangawwa found on the sale deed. The Commissioner has filed his report stating that the thumb impression does not tally.
6. The trial Court on appreciation of the oral and documentary evidence on record held that the Will is proved. In coming to the said conclusion the trial Court rejected the evidence of the Commissioner, finger print expert. The reason given was the Commissioner has not been examined and the Commissioner’s report is not marked as exhibit, and therefore it cannot be looked into. The second reason given is the time gap of two thumb impressions. There is almost a time gap of 26 years. The thumb impression found on the sale deed is of the year 1964 and the thumb impression in the Will is of the year 1990. Therefore, it held that by no stretch of imagination, it can be said that over a period of 26 years there can be no change or variance in the thumb impression. It also held that, only on the basis of the expert opinion it is not possible to come to the conclusion that Will Ex.D-12 is forged or bogus. It also held that in the absence of attesting witnesses being dead, the evidence of the scribe D.W-2 assumes importance. He has deposed regarding the capacity of the testator and has seen the execution of the Will. His evidence would show that the testatrix had executed the Will during her life time in sound and disposing state of mind. The other witness D.W-3 who was present at the time of execution of the Will, and his evidence also establishes the Will.
7. Aggrieved by the said judgment and decree of the trial Court, the plaintiffs preferred Regular Appeal. The lower appellate Court framed the following points for consideration.
1. Whether the appellants/plaintiffs establish that, the judgment and Decree of the lower Court is perverse, arbitrary and against the oral and documentary evidence adduced by the parties and is against the settled principles of law and is liable to be set aside by decreeing the suit of the plaintiffs?
2. What Decree or order?
8. The Lower appellate Court, on reappreciation of the entire evidence on record, set aside the judgment and decree of the trial Court as perverse. It held that the trial Court has taken the evidence of the Commissioner’s report in a light hearted manner. In the Commissioner’s report, the Commissioner made it clear that the questioned left hand thumb impression on the Will and the thumb impression found in the original registered sale deed are altogether different. There are no comparision. The first LTM is a Loop in structure, while the second LTM is Whorl (Wheel). The magnified photographs can be observed from the naked eye where the said fact is clearly visible. This evidence of the expert destroy the case of the Will, propounded by the propounder. The thumb impression is a marvelous mystery of nature in its creation wherein no two thumb impressions of different individuals found to be identical so far. In this case, one thumb impression is a Loop and another is a Circle. The Lower Appellate Court could not differenciate the same and therefore it cannot be said that the Will is executed by Smt. Gangawwa. Therefore, it set aside the said finding recorded by the Courts below.
9. Aggrieved by the said judgment and decree of the lower appellate Court, the defendants are in Second Appeal. The learned Counsel for the appellants Sri. R.L. Patil, assailing the impugned judgment and decree of the lower appellate Court contends that, firstly, when the Commissioner’s report was not marked in the case and when the Commissioner was not examined to prove the Commissioners report, the lower appellate Court committed serious error in acting on the Commissioner’s report and in holding that the Will is not proved. Secondly, he contended that the evidence of an expert is generally of a frail character and its fallibilities have been quite often noticed. The Court should, therefore be wary to give too much weight to the evidence of an expert. Thirdly, he contended that when admittedly both the attesting witnesses to the Will are dead, the examination of the scribe and another witness who was present at the time of execution of the Will would prove the Will. Therefore, he submitted that the lower appellate Court committed serious error in interfering with the judgment and decree of the trial Court and in decreeing the suit of the plaintiffs. Per contra, the learned Counsel for the respondent supported the impugned judgment and decree.
10. The substantial questions of law that arise for consideration in This second appeal are:
1) Whether the Commissioner’s report can be looked into by the Court without the same being marked in a case and without the commissioner being examined to prove the report?
2) How far the science of finger print is useful in adjudicating the dispute and what is the weight to be attached to the report of a finger print expert?
3) Whether in the absence of the attesting witness being alive, how to prove the Will, as required under Section 63 of the Indian Succession Act read with Section 68 of the Evidence Act?
11. I have heard the learned Counsel for the parties. 12. The material on record shows that the suit schedule property was purchased by Gangawwa under a registered sale deed dated 06.03.1964 for a valuable consideration of Rs. 500 as per Ex.P-2. She is said to have executed the Will dated 26.01.1991 bequeathing the said property in favour of her daughter-in-law, the wife of first defendant namely the third defendant. The said Gangawwa died on 09.10.1993. It is thereafter, the plaintiffs, her sons, have filed the suit for partition and separate possession of their 1/4th share. The second defendant, another son died inte state during the pendency of the proceedings. He was not married. Therefore, three sons would-be entitled to l/3rd share in the suit schedule properties. The defendants have set up the Will dated 26.01.1991 under which Gangawwa, the owner, has bequeathed the property in favour of the third defendant. If the Will is established, the plaintiffs are not entitled to a share. In fact, in the plaint itself, the plaintiff has averred that the third defendant is claiming the suit schedule properties under a Will and on that basis she has got the katha of the property made in her name after the death of Gangawwa. They also contended that the said Will is false, fabricated, concocted and bogus document. Therefore, it is for the defendants, in particular, the third defendant who is the propounder of the Will to prove the Will, if she has to deny the plaintiffs’ right to a share in the said property.
12. The Plaintiffs made an application for appointment of finger print expert to compare the thumb impression found in the Will Ex.D12 with the thumb impression found in the registered sale deed Ex.P-2. The finger print expert compared the thumb impression and has submitted his report stating that they do not tally. No objections was filed to the said report by the defendants. However, in her evidence she has stated that she do not admit the said report. The commissioner was not examined. In order to prove Ex.D-12 the Will, both the attesting witnesses, as they were dead, were not examined. On the contrary, the defendants have examined the scribe of the Will as D. W-2. They have also examined one more witness who is said to have been present at the time of execution of the Will as D.W-3. In the light of this evidence, whether the will is proved is to be seen.
Question No. 1:
What is the evidentiary value of the Commissioner’s report is to be found under Order 26 Rule 10(2) of CPC which reads as under:
Report and depositions to be evidence in suit – The report of the Commissioner and the evidence taken by him. (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.
13. A reading of the aforesaid provision makes it clear that the report of the Commissioner once submitted to the Court, shall be evidence in the suit and shall form part of the record. It is not necessary that the said Commissioner’s report is to be marked as an exhibit in the case. Similarly, it is not necessary that the said Commissioner is to be examined, to prove the contents of the said report. It is up to the choice of the party to examine the commissioner in respect of the matters referred to him or mentioned in his report. The examination referred to in the aforesaid provision is to be understood in the context of the word examination referred to in Chapter 10 of the Evidence Act. The examination includes examination in chief, cross examination and re-examination. Therefore, if a party to the proceedings has no grievance whatsoever against the report of the Commissioner the question of that party examining the Commissioner would not arise. However, if either of the parties do not accept the correctness of the Commissioner’s report, it is open for them to file their written objections opposing the said Commissioner’s report. In order to substantiate the said objections and to request the Court not to act on the Commissioner’s report, with the permission of the Court, they have been given an opportunity to examine the Commissioner personally in the open Court touching any of the matters referred to by him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation. Normally, when objection is filed to the Commissioner’s report contending that the said report is incorrect, to substantiate the said stand it is necessary for the party to examine the Commissioner personally in Court and cross examine him on those aspects in the light of the objections taken. If the party is successful in discrediting the entire report or a portion of the report in respect of which he has grievance, the Court in its discretion may reject the report of the Commissioner. However, if that cross examination do not substantiate the objection taken by the party, it is open to the Court to accept and act on the said Commissioner’s report. Only when the Commissioner is examined, then the Court has to consider the report along with the oral evidence in order to appreciate the probative value of the said report and on such appreciation, may accept the report or may reject the report. If the report is rejected in total, it is open to the parties to have one more Commissioner appointed for the very same purpose. But for admission of the said Commissioner’s report as evidence, it is not necessary that the Commissioner should enter the witness box, or he should produce the said report before the Court and the Court has to mark it as an exhibit in the case. In other words, without marking the Commissioner’s report as exhibit, without the Commissioner being examined in the case, the said Commissioner’s report can be taken as evidence in the case. Merely because the said piece of evidence is taken on record it does not follow that, all that is stated there is true or proved. Proof and relevancy is different from admissibility of the evidence.
14. This provision should not be confused with the general law governing the admissibility of an expert’s evidence. In a criminal case when the prosecution relies on the expert’s evidence to prove the charges against the accused mere production of the said expert’s report into Court is not sufficient. It does not become a part of the Court record on mere production. If the prosecution relies on a report of the expert, not only the report is to be produced, the author of the report is also to be examined in the Court on oath and an opportunity should be given to the accused to cross-examine the said expert on the correctness of the report. It is only then the said evidence becomes admissible and not otherwise. In such a criminal prosecution, the Court has not appointed the expert. It is the prosecution, to prove its case, needs report and they have to examine such an expert to prove their case. In a criminal trial, expert is a witness for the prosecution. He is not a Commissioner appointed by the Court in the proceedings.
15. It is also possible that even in civil cases, a party to substantiate his case may rely upon the report of an expert which he has obtained prior to the institution of the suit or even after the institution of the suit. If the party wants to rely on such report and if he produces the said report into Court, the said report would not form part of the record and the report of such expert would not be treated as evidence in the suit by mere production of the same. In such circumstances, it is obligatory on the part of the party who relies on the said expert report to examine him, produce the report through him, get it marked and then subject the said expert for cross-examination of the opposite party. It is only after the examination of such expert, his report would become admissible in evidence. Therefore, it is necessary to bear this distinction in mind while dealing with a report of an expert, who is not a Commissioner.
16. In a civil proceedings when an expert is appointed as a Commissioner by the Court at the instance of one of the parties to the proceedings, the Court may issue commission to such experts for the purpose of elucidating any matter in dispute directing him to make such investigation and to report thereon to the Court. It is thereafter when the commissioner/expert submits his report to the Court which appointed him, the report of the Commissioner shall become evidence in the suit and shall form part of the record. Therefore, the report of the commissioner/expert prepared and submitted on the orders of the Courts stands on a totally different footing in the matter of admissibility than the report of an expert prepared at the instance of either of the parties of the suit or at the instance of the prosecution in a criminal case. This fundamental difference is to be borne in mind before appreciating the report of the expert/Commissioner.
17. Therefore, the expert becomes a Commissioner only when court appoints him under order XXVI of the CPC. The expert is only a witness for the prosecution in a criminal case, and a witness for the party who appointed him in civil cases. It is only the report of the Commissioner, who is appointed by the Court, shall be evidence in the suit and shall form part of the record and it is not necessary to examine him and get it marked through him to make it evidence.
Question No. 2:
18. The utility of the science of thumb impression and its comparison to find out the execution of disputed documents are concerned, it would be of great assistance to the courts, in rendering justice. The marvelous mystery of nature in its creation is unfolded in the following words by the experts in the field.
19. Henry on finger prints, 4th Edpp 16-19,
Sir Francis Galton investigated the persistence of the ridges throughout the period of human life and in the following words records the results of his examination of many sets of prints taken at different times, and covering the interval from childhood to boyhood, from boyhood to early manhood, from early manhood to middle age and from middle age to extreme old age:
As there is no sign except in one case of change during any of these four intervals which together almost wholly cover the ordinary life of man, we are justified in inferring that between birth and death there is absolutely no change in say 699 out of the 700 numerous characteristics of the markings of the fingers of the same person such as can be impressed by him whenever it is desirable to do so. Neither can there be any change after death up to the time when the skin perishes through decomposition; for example, the marks on the fingers of many Egyptian mummies and on the paws of stuffed monkeys still remain legible. Very good evidence and careful inquiry is thus seen to justify the popular idea of persistence of finger impressions.
20. In the Modi’s Medical Jurisprudence and Toxicology, 22nd Edition it is stated as under:
Dactylography is also known as the fingerprint system and consists in taking the impressions of the pulp of the fingers and thumbs with printer’s ink on an unglazed white paper and then examining them with a magnifying lens. It is based on the principle that the individual peculiarities of the patterns formed by the arrangement and distribution of the papillary or epidermal rights on the finger tips are absolutely constant and persist throughout life, from infancy to old age, and that the patterns of no two hands resemble each other. Even the fingerprints of twins are not similar. It has been estimated that the chances of two persons having identical finger impressions is about one in thirty times the population of the world.
21. The Supreme Court in Jaspal Singh v. State of Punjab , observed that Science of identifying the thumb impression is an exact Science and does not admit of any mistake or doubt. Therefore, it is settled law that the science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. The underlying principle is that the individual peculiarities of the patterns formed by the arrangement and distribution of the papillary and epidermal rights on the finger tips are absolutely constant and persist through out life, from infancy to old age. There is absolutely no change of the markings of fingers between birth and death and even after death up to the time when the skin perishes through decomposition. It is equally well recognized that the patterns of no two hands resemble each other. Even the finger prints of twins are not similar. When the thumb impression on the disputed document is disputed, this science of finger prints aids and guides the courts in resolving the dispute, if an expert’s evidence is made available.
22. The evidence of finger impression is admissible. But the person giving his opinion as in other cases must be an expert. Comparision is to be made with finger impression proved beyond doubt or admitted. Expert opinion on finger prints has the same value as the opinion of any other expert, eg medical opinion, &c; in each case the evidence is only a guide to judge of its value. The Court is at liberty to use its own discretion and to affirm or to differ from the expert opinion. The evidence of an expert is in the nature of opinion evidence. It is advisory in nature. It is not conclusive. It is not substantive evidence. However, the Courts before acting on such an expert’s evidence insist corroborative evidence. It is not a rule of law. It is a rule of caution and prudence. The expert’s evidence should contain reasons. The Court should be careful in looking at such evidence and examining the same. However, it is wrong to think that the expert’s evidence cannot be acted upon without corroboration. When the Courts have declared that the corroboration is a must they did not mean without corroboration the expert’s evidence is admissible. Expert’s evidence would not become evidence automatically. The weight of the evidence is dependant on the correctness of the report, the reasons given and their expertise in the field.
Question No. 3:
23. The question is how to prove the Will when attesting witnesses are dead? The proof of execution of document required by law to be attested is contained in Section 68 of the Evidence Act. Section 68 to 71 deals with the proof of document required by law to be attested. Section 63 of the Indian Succession Act deals with execution of unprivileged Wills. Clause (c) of Section 63 mandates that the Will shall be attested by two or more witnesses. Section 68 of the Evidence Act states that if a document is required by law to be attested, it shall not be used as evidence until 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. The proviso to the said Section makes it clear that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 unless its execution by the person by whom it purports to have been executed is specifically denied. Therefore, it is clear that in so far as proving of Will is concerned, even in the absence of the executant of the Will denying his signature, the law mandates that the Will shall not be used as an evidence until one attesting witness at least has been called for the purpose of proving its execution. It is to be remembered that the Will comes to life and becomes effective only on the death of the executant of the Will. Therefore, the question of executant denying the execution of the Will would not arise. It is only the persons who would be entitled to the property of the testator in accordance with law who would be interested in denying the execution of the Will, if the propounder of the Will claims the property of the testator to the exclusion of such natural legal heirs. Therefore, when a Will is denied the propounder of the Will has to prove the due execution and attestation of the Will. One of the mode of proving the execution of the Will is to examine the attesting witnesses who have witnessed the due execution of the Will. When such attesting witnesses are dead, without their evidence the Will is not proved.
24. Therefore, in so far as the proof of Will is concerned, even the Registration and non-denial of execution would not prove the Will ipso facto. It has to be proved by examining the attesting witness. If the attesting witnesses are not alive, then Section 67 of the Evidence Act is attracted. If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting. Section 67 does not prescribe any particular mode of proof. In addition to usual modes, handwriting may also be proved by circumstantial evidence. Any recognised mode of proof satisfactory to the Judge will do. The execution or authorship of a document being a question of fact, it can be proved like any other fact by direct or circumstantial evidence. Therefore, it necessarily follows that if the attesting witness are not alive, persons who are well acquainted with the handwriting or signature of the attesting witness should be examined to prove the signature of the attesting witness. When the handwriting of a dead attesting witness have been proved, there is presumption of, in the absence of rebutting evidence, that they have witnessed the execution. When all the attesting witnesses are dead, requirement of law would be satisfied by any evidence showing that the document was executed in the presence of two attesting witnesses. Therefore, when attesting witness is not alive, the parties are not helpless and the law provides for proving the signature of the attesting witness also.
25. In the instant case, both the attesting witnesses are dead and no witness who is well acquainted with the signature of the attesting witnesses has been examined to prove the due attestation of the Will. On the contrary, the scribe is examined and one more person who was present at the time of execution of the Will is examined. Their evidence only shows that executant has signed the Will and the executant was in sound state of mind at the time of execution of the Will. Therefore, they have not spoken about the due attestation of the Will. Unless the attestation of the Will is proved in accordance with law, the Will is not proved. The evidence on record do not prove the due attestation of the Will.
26. The trial Court was not justified in rejecting the Commissioner’s report on the ground that it was not marked and he was not examined. The reasoning of the trial Court that though the disputed thumb impression is different from the admitted thumb impression, because of gap of 26 years, such difference is normal, is erroneous. It further committed an error on relying on the evidence of the scribe and another witness, who did not speak about the attestation of the will, and in coming to the conclusion that the will is proved. In those circumstances, the lower appellate court, after reappreciation of the evidence on record including the commissioner’s report and bearing in mind the correct legal position was justified in setting aside the judgment and decree of the trial Court, and in holding that the will is not proved and consequently decreeing the suit of the plaintiff for partition.
27. For the aforesaid reasons, once the Will is not proved, the plaintiffs who are the sons of Gangawwa, are entitled to equal share along with the first defendant who is the another son. Therefore, the lower appellate Court was justified in decreeing the suit of the plaintiffs as prayed for. Accordingly, the Second Appeal is dismissed. Parties to bear their owns costs.