1 nm-101 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No.101 of 2010 IN Testamentary Suit No.22 of 1991 IN Petition No.121 of 1990 Hoshang Pesi Hodiwalla .. .. Plaintiff (orig. Petitioner) v/s. Bonny Behramshah Bhathena & ors. .. Defendants (Orig. Respondents) Mr.G.S. Hiranandani for Plaintiff. Mr.Sean Wassoodew for Deft.No.1. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 7th September, 2010 P.C. : 1.The issues have been framed in this suit. The Affidavit of examination-in-chief of the Plaintiff and one attesting witness has been filed. The Commissioner has not been appointed to record the cross-examination of the parties in the suit. In the meanwhile, the Defendants have obtained an opinion of the handwriting expert. That handwriting expert is stated to be old and infirm and his evidence cannot be recorded. The 2 nm-101 Defendants desire another handwriting expert to see and photograph the signatures of the testator on the Will. It is opposed by the Plaintiff. All parties deserve to be given liberty to prove or disprove the Will, as they deem fit provided, of course, that the Application is bona fide and does not delay the proceedings needlessly. 2.It is seen that the Commissioner is also yet to be appointed. Trial would require to proceed. In the meantime, the Will can be inspected and photographed by any other handwriting expert. 3.Hence the following directions: (i)By consent, Ms.Mamta Saad, Advocate is appointed Commissioner to record the evidence in this suit. The parties shall appear before the Commissioner initially on 16th September 2010 at 5 p.m. and thereafter as fixed by the Commissioner. The Commissioner shall record the evidence preferably day to day. (ii)The parties shall pay the fees of the Commissioner as fixed by the Commissioner equally. (iii)The Commissioner shall record the cross-examination 3 nm-101 of the Plaintiff as well as the attesting witnesses. (iv)The Plaintiff s Advocate states that the Plaintiff shall not examine any other further witness. So soon as the Plaintiff closes his case, the Defendants shall file their Affidavit of examination-in-chief, if any. The Advocate on behalf of the Defendants states that the Defendants shall examine one of themselves and one handwriting expert. The Defendants shall file the Affidavit of documents also along with their Affidavit of examination-in-chief. (v)The suit shall be placed on Board for considering the admissibility and relevancy of the documents of the Defendants thereafter. (vi)In the meantime, the Defendants shall allow inspection of the original Will to the other handwriting expert in the chamber of the Prothonotary and Senior Master of this Court on 21st September 2010 at 11.30 p.m. The Plaintiff s Advocate shall be entitled to remain present at that time. The handwriting expert shall be entitled to take photographs of the Will, if required. The Will shall not be removed from the chamber of the Prothonotary and Senior Master of this Court. 4 nm-101 (vii)The parties shall place the suit on Board for considering the admissibility of the documents at the appropriate time. (viii)The Notice of Motion is disposed of accordingly. (SMT.ROSHAN DALVI, J.)