Debi Prosad Dey, J.

Radharani Chowdhury since deceased executed a Will during her lifetime and appointed Tarak Chowdhury and Sambhu Chowdhury (opposite parties of this application) both sons of Panna Lal Chowdhury as executor of the said Will. Probate was duly granted in Act 39 case being no.13 of 1996 in favour of the aforesaid opposite parties. Probate in respect of the Will of Radharani Chowdhury was granted in favour of Tarak and Sambhu Chowdhury in Act 39 case no.13 of 1996.

Smt. Jashoda Chowdhury wife of Late Charu Chowdhury initiated a revocation case being case no.164 of 2004 against the aforesaid opposite parties for revocation of the Probate granted in Act 39 case being no.13 of 1996 on the ground that such Probate was obtained by the opposite parties without serving any summons/notices/intimations upon the petitioner and the opposite parties have obtained such Probate by practicing fraud upon the learned trial Court. On inspection, the petitioner came to know that one Acknowledgment Due Card was incorporated in the Probate proceeding showing forged/manufactured left thumb impression of the petitioner said to have been attested by one Narayan Chowdhury.

The opposite parties have filed an application under Order 26 Rule 10A read with Section 151 of the Civil Procedure Code with a prayer for comparing the left thumb impression of the petitioner namely Smt. Jashoda Chowdhury appearing in the Acknowledgment Due Card with her admitted left thumb impression appearing in the two vokalatnamas filed in Court on 08.12.2004 and 19th July, 2010 as well as left thumb impression of Jashoda appearing on the deposition sheet of her own evidence before this Court and on the petition of Act 39 case filed by her. Learned trial Court ultimately allowed said application and directed the Director, Finger Print Bureau, CID, DIB, Bhawani Bhavan to compare the said left thumb impression of Smt. Jashoda Chowdhury and to submit report.

Being aggrieved by and dis-satisfied with such order Smt. Jashoda Chowdhury (herein after referred to as petitioner only), has filed this application under Article 227 of the Constitution of India solely on the ground that the alleged left thumb impression appearing in acknowledgment due card has not been admitted in evidence as exhibit and accordingly learned trial Court was not justified in referring the said document for comparison without admitting the said document as exhibit in evidence.

Learned Counsel Mr. Hiranmoy Bhattacherjee appearing on behalf of the petitioner contended that no notice/summons was ever served upon Jashoda Chowdhury while granting Probate in favour of the opposite parties and the alleged left thumb impression appearing in the acknowledgment due card has been manufactured/forged by the opposite parties.

Mr. Bhattacherjee further contended that learned trial Court committed mistake in referring the said left thumb impression appearing in the acknowledgment due card along with admitted left thumb impression of the petitioner to the expert for comparison since the alleged left thumb impression appearing on the acknowledgment due card has not yet been admitted in evidence as exhibit. According to the petitioner, learned trial Court should not have referred the left thumb impression appearing on the acknowledgment due card since the said document has not yet been admitted in evidence.

Learned Advocate Mr. Swapan Kumar Mallick appearing on behalf of the opposite parties has however supported the order being no.44 dated 13.03.2015 passed by learned trial Court on the ground that the entire defence of the opposite parties as well as the case of the petitioner would be decided by the report of the expert regarding the genuinity of the left thumb impression of the petitioner appearing in the Acknowledgment Due Card. In support of his contention Mr. Mallick has referred the decisions reported in AIR 1979 SC 23(Jetha Ram vs. the State of Rajasthan) and AIR 1981 MP 69 [LQ/MPHC/1980/316] (Smt. Ram Bai vs. Life Insurance Corporation of India, Bhopal).

Mr. Mallick further contended that learned trial Court has had ample jurisdiction to pass such order for comparison of the left thumb impression of the Smt. Jashoda Chowdhury in terms of Section 165, 73 and 67 of the Indian Evidence Act.

Mr. Mallick vehemently contended that the acknowledgment due card being part of the record has already been admitted in evidence and the said acknowledgment due card has been marked X for identification. Moreover, without the help of the expert the rights of the parties cannot be adjudicated upon and learned trial Court was perfectly justified in invoking its discretion in terms of Order 26 Rule 10A of the Civil Procedure Code.

The petitioner and one Fultushi Chowdhury are two step daughters of Radharani Chowdhury. The opposite parties namely Tarak and Sambhu Chowdhury are the sons of Fultushi. Radharani Chowdhury executed a Will in favour of Tarak and Sambhu Chowdhury i.e. the opposite parties and Probate was granted by learned Court in Act 39 case no. 13 of 1996 in favour of the opposite parties. The petitioner has now filed a case for revocation of the said Probate on the ground that no notice/summons was ever served upon the petitioner. It is apparent from the materials on record that one acknowledgment due card containing left thumb impression of the present petitioner was accepted by the trial Court as service of summons/notice upon the petitioner while granting the Probate in favour of the opposite parties. That goes to show that the said Acknowledgment Due Card is part and parcel of the case being no.13 of 1996 and accordingly the said acknowledgment due card has been accepted by the trial Court and marked X for identification. However, the Court could not decide the genuinity of the left thumb impression of the present petitioner without the help of the expert. It would be appropriate to refer the relevant provision contained in Order 26 Rule 10A, which is set out as under:-

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.

It is crystal clear from plain reading of Order 26 Rule 10A of the Code of Civil Procedure that the Court has got the necessary discretion to issue a commission for deciding any question which requires the scientific investigation and which cannot be conveniently decided by the Court without such scientific investigation.

In the given facts and circumstances of this case the petitioner is simply denying that the left thumb impression appearing in acknowledgment due card is not the genuine left thumb impression of the petitioner. On the contrary, the opposite parties have manufactured the left thumb impression of the petitioner in the acknowledgment due card.

It is now impossible to give a clear and definite finding as regards the genuinity of such left thumb impression without the help of expert. Learned trial Court therefore was perfectly justified in referring the matter for examination of the left thumb impression of the petitioner along with her admitted left thumb impression to expert in order to come to a definite finding with regard to the genuinity of the claim of the present petitioner. It is therefore incumbent upon the petitioner to prove that the petitioner is not the author of such left thumb impression appearing on the acknowledgment due card. Her oral evidence or simple denial will not absolve the petitioner of the liability to prove that she is not the author of such left thumb impression, when the document has been admitted by the trial Court as the document of service of notice upon the petitioner.

Any objection to such order of comparison of such left thumb impression, by the petitioner would definitely infer an adverse presumption against the petitioner and the Court would infer such adverse presumption against petitioner since the petitioner is resisting the discretion exercised by learned trial Court in order to unearth the actual state of affairs by referring the document containing the left thumb impression of the petitioner to the expert for examination.

It is needless to say that the Apex Court has time and again observed that the science of examination of thumb impression has reached its finality and the science of examination of thumb impression is a perfect science. Therefore, learned trial Court was perfectly justified in holding that the matter in dispute can only be resolved with the help of expert and that is why the left thumb impression of the petitioner appearing on the Acknowledgment Due Card, which is part and parcel of Act 39 case no.13 of 1996 should be examined/compared with the other admitted left thumb impression of the petitioner. I would like to mention here that the decision reported in AIR 1979 SC 23(Jetha Ram vs. The State of Rajasthan) relates to the power of learned magistrate under Section 73 of the Indian Evidence Act and I do not find any application of the said decision in the given facts and circumstances of this case. The decision reported in AIR 1981 MP 69(Smt. Ram Bai vs. Life Insurance Corporation of India, Bhopal) is also not applicable in the context of the given facts and circumstances of this case.

At the risk of repetition I would like to observe that the entire case of the petitioner revolves round the genuinity of the left thumb impression appearing in the acknowledgment due card of the Act 39 case no.13 of 1996 and the genuinity of the left thumb impression cannot be decided by the Court without the help of the expert. Thus, learned trial Court was perfectly justified in directing the expert to compare such left thumb impression along with the admitted left thumb impression of the petitioner. The application under Article 227 of the Constitution of India is devoid of merit and accordingly dismissed. No order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.