SUSHEELAMMA W/O. NAGARAJA Vs. SMT. PADMAMMA W/O. LATE L. CHANDRASHEKHARAIAH

JUDGEMENT

(1.) THIS writ petition is directed against the order dated 29.9.2011, passed on I.A.No.13, which is an application filed under Section 151 of Code of Civil Procedure, in O.S.No.37/1996 on the file of the Senior Civil Judge and CJM, Chickballapur.

(2.) THE relevant facts of the case are that the trial Court had appointed a Commissioner -Handwriting Expert to give his opinion with regard to the signature of the husband of the 1st plaintiff on the Will dated 10.3.1394, Thereafter, the Commissioner has submitted his report holding that there is variation in the signature on the Will and on the admitted documents which are Sale Deeds dated 30.4.1585, 14,6.1989 and 20.9.1993. Under the circumstances, the petitioner herein filed an application seeking rejection of the Commissioner's report. The said application has been dismissed. It is against the said order this writ petition is filed.

(3.) WHILE the trial Court is justified in dismissing the application, however the observations made by the trial Court in the following words 'under the circumstances, I am of the opinion that I find no fault with the Commissioner so as to reject his report' calls for modification. It is necessary to note that the commissioner's report is only a piece of evidence which has to he taken into consideration by the trial Court along with all other evidence, both oral and documentary, while deciding the validity of the Will dated 10.3.1994. Therefore, at this stage, the trial Court should not have been stated that there is no fault with the Commissioner's report. The said observation must be understood to mean that the commissioner's report is taken on record. To that extent, the order dated. 29.9.2011 is modified. It is needless to observe that the trial Court would consider the Commissioner's report with the other evidence on record while adjudicating the validity of the Will dated 10.3.1994.