Karnataka High Court
Basamma W/O Sidramappa Akkalkot vs Shakuntala W/O Ravindra Maka And Anr on 4 September, 2020
Author: P.N.Desai
Bench: P.N.Desai
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 04TH DAY OF SEPTEMBER, 2020
PRESENT
THE HON'BLE MR.JUSTICE P.N.DESAI
REGULAR FIRST APPEAL No.200079/2015
BETWEEN:
Basamma W/o Sidramappa Akkalkot
Age: 44 years, Occ: Household work,
R/o LIG 80, Adarsh Nagar, Infront of
Hanuman Temple Vijayapur
Tq: & Dist: Vijayapaur.
....APPELLANT
(By Huleppa Heroor, B Bheemashankar,
& Shivasharan Reddy Advocates for Appellant)
AND:
Sri.Shakuntala W/o Ravindra Maka
Age: 40 years, Occ: Household,
R/o Devarhippargi village
Tq: Sindagi Dist: Vijayapur 586 101.
... RESPONDENT
(By Sri.S.S.Mamdapur Advocate )
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CODE OF CIVIL PROCEDURE PRAYING TO
ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT
AND DECREE PASSED IN O.S No.133/2008 DATED: 28-08-
2015 ON THE FILE OF CIVIL JUDGE (SR.DN.) JEWARGI BY
DISMISSING THE SUIT IN THE INTEREST OF JUSTICE.
THIS APPEAL COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING
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JUDGMENT
1. This Regular First Appeal arises out of the Judgment and decree passed by the Senior Civil Judge Jewargi dated: 28-08-2015 partly decreeing the suit of the plaintiff. The appellant is the defendant and respondent is the plaintiff No.1 before the trial court. Plaintiff No.2 died during the pendency of the suit.
2. For the purpose of clarity and convenience and to avoid repetition of discussion, the parties are referred in this Judgment as per their respective ranks before the Trial Court.
3. The plaintiffs have filed suit before the trial court for partition and separate possession in respect of land bearing survey No.179/1 measuring 13 acres 33 guntas of village Kuralagera Tq: Jewargi and also in respect of house bearing VPC No. of Kuralgera village. It is the case of the plaintiff that, father of the plaintiff No.1 and husband of plaintiff No.2 inherited these 3 properties from the ancestors. The plaintiff No.2 Ningamma is the wife of said Shivalingappa @ Siddalingappa. Plaintiff No.1 and defendant Basamma are the daughters of Shivalingappa. The plaintiffs have contended that, they have got 2/3rd share and defendant has got 1/3rd share in the suit properties as they are joint Hindu family properties of plaintiffs and defendant. It is further case of the plaintiffs that, Shivalingappa died in the year 1987. Thereafter-words the defendant got mutated her name in the records of the suit properties without notice to the plaintiffs.
It is further case of the plaintiffs that, plaintiff No.2 was cultivating the said land with the assistance of coolies and hired labour. It is contended that, defendant since the date of marriage is residing in her husband's house at Devar Hippargi village in Sindagi Taluka. The defendant often use to quarrel with the plaintiff No.2 whenever she visits the parents house at Kuralgera village and she used to loot the entire fruits of the suit 4 property. Now the said land is irrigated through UKP Canal water and the defendant is also making dispute.
It is further contended that, in the month of March 2008 the defendant by taking advantage of her name appearing in the revenue records, threatened to destroy the crops and by force she has taken entire crops. Inspite of requests made by plaintiff she did not stop her illegal activities. Ultimately on 30th April 2008 the plaintiff requested to effect partition and separate possession in the suit property.
4. The defendant appeared before the trial court and filed written statement. In the written statement the defendant has admitted the relationship and contended that, the plaintiff No.2 is not residing with plaintiff No.1 as on the date of the suit and she has impersonated the signature of the plaintiff No.2. Even plaintiff No.2 has not instructed the Advocate to file suit. The defendant has contended that, the father of 5 the plaintiff No.1 and defendant by name Shivalingappa is the sole and exclusive owner of the suit property. In fact with the intention to continue the family name and family property he has bequeathed the suit property with the consent of Ningamma in favour of defendant through a registered will deed dated: 04-04-1979 and he has given 12 tolas of golden articles and savings to the plaintiff No.1 and after death of Shivalingappa his wife Ningamma got transferred the suit land in favour of the defendant as per the will and wish of her husband Shivalingapa, with the prior consent of plaintiff No.1 in the year 1987. Since the 1987 till today, the defendant is cultivating the suit property with the full knowledge and consent and without anybody's interference and has perfected the title by way of adverse possession. The plaintiff No.1 has not challenged the entries standing in the name of defendant and thereafter the said lands are standing in the name of her children by name Chandrakant S/o Siddramappa and Praveen S/o 6 Sidramappa. Hence the plaintiff has lost her right, title and interest. The other contentions are denied as false and baseless. The plaintiff never cultivated the suit land, nor in possession of the suit land. In fact it is the defendant along with her mother plaintiff No.2 is residing in the village Kuralgera and as per the wish and will of her father doing agriculture by residing in the suit house. She has denied other allegations about the quarrel and demand and contended that, there is no cause of action to file this suit. The suit suffer from non joinder of necessary parties i.e. Chandrakant S/o Siddramappa and Praveen S/o Siddramappa. With these main grounds the defendant has prayed to dismiss the suit of the plaintiff with costs.
5. On the basis of the pleadings, the Trial Court has framed the following issues:
ISSUES
1. Whether the plaintiffs prove that, suit schedule properties are all Hindu undivided Joint family properties?7
2. Whether the plaintiffs having 2/3rd share in the suit schedule properties?
3. Whether the defendant proves that, his father Shivalingappa bequeathed the suit properties in favour of defendant through a registered will deed?
4. Whether the defendant proves that, she being absolute owner to the suit schedule property by way of adverse possession?
5. Whether the suit is barred by law of limitation?
6. Whether the suit is bad for non joinder of necessary parties?
7. Whether the plaintiffs are entitle to the suit claim?
8. What order or decree?
6. The plaintiff No.1 examined herself as PW.1 and got marked four documents Exs.P.1 to P.4 and closed her side. On behalf of defendant, defendant got examined herself as DW.1 and one witness by name Sharanappa is examined as DW.2 and got marked twenty two documents as Exs.D1 & Ex.D.22. 8
7. The Trial Court after considering the pleading and evidence partly decreed the suit, allotting first plaintiff and defendant half share and ordered to draw preliminary decree.
8. Being aggrieved by the said judgment, the defendant/appellant has preferred this Appeal on the following grounds:-
(a) That the Judgment and decree passed by the trial court is illegal, arbitrary and contrary to the provisions of law and facts.
(b) The trial court has not properly considered the oral and documentary evidence to discharge the burden to prove the execution of will.
(c) The trial court has decreed the suit without considering the aspect of non inclusion of family properties which is apparent on record. House property is not included in this suit and suit for partial partition is not maintainable.9
(d) The trial court has not given proper reasons for answering Issue No.3 in the negative.
(e) The registered will is not denied nor challenged before any court of law. In the absence of any suspicious circumstance and denial of the execution of alleged will deed by the plaintiffs, the appellant need not prove the execution of the will. No doubtful circumstances having arisen about will to remove the same. Even the trial court did not adopt the Doctrine of arm chair principle to know the intention of the testator at the time of execution of will. It is contended that, trial court has not considered the presumption available under section 90 of the Indian Evidence Act in respect of thirty years old documents as the alleged will was acted upon.
(f) The trial court has failed to consider the aspect that, appellant proved the will in the absence of suspicious circumstances. The mode of proof of will is like any other document and it need not be proved with 10 mathematical certainty. It is contended that the attesting witnesses to the will deed died long back. The appellant was not aware about their legal representatives. Recently she came to know where the legal representatives are residing and the address was found. In view of ignorance about the address earlier she could not lead their evidence to prove the execution of will. She has filed separate application seeking permission to adduce additional evidence to prove the will.
(g) The suit suffers from non joinder of necessary parties as the sons of the appellant in whose name the ROR is standing as on the date of suit.
With these main contentions the appellant/defendant has prayed to allow the appeal by setting aside the Judgment and decree of the trial court.
9. Along with Appeal the appellant has filed I.A.No.2/2016 under Order 41 Rule 27 of C.P.C 11 contending that, the defendant has taken contention that, the father of the plaintiff and defendant who was the absolute owner has bequeathed the suit property in favour of the defendant through a registered will deed dated: 04-04-1979 in the presence of attesting witnesses but the attesting witnesses died long back and he could find the address of the legal representatives at the time of his evidence, now recently he came to know the address of the legal heirs. The suit is for partition and separate possession filed by the plaintiff and he has denied the share. In fact he has tried to find out the address of legal representatives of deceased attesting witnesses to lead the evidence to prove the will. So not leading of that evidence is neither malafide intention, nor intentional. He has further contended that, no harm will be caused to other side if the application is allowed, other hand the appellant will suffer if the application is not allowed. It is further contended that to lead additional evidence to enable the 12 court to pronounce the effective Judgment it is necessary to lead the evidence in the interest of justice. So he prayed to permit him to lead additional evidence and allow the application.
10. The respondent has filed objections to the application filed under Order 41 Rule 27 of C.P.C contending that, the averments made in support of the application did not constitute any ground to production of additional evidence, the necessary ingredients under Order 41 Rule 27 of C.P.C are absent. He further contended that, though the appellant has set up will, he did not take contention to prove the execution of will, they have not made any efforts before the trial court. The appellant is trying to fill up the lacuna which is not permissible. The appellant knowingly and deliberately not chosen to adduce the evidence even though he has got opportunity. So, the averments made are all false and prays to dismiss the application.
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11. Heard Sri. B Bheemashankar learned counsel for the appellant and Sri. S. S. Mamdapur learned counsel for respondent.
12. Sri. B. Bheemashankar, learned counsel for appellant argued that, the registered will executed on 04-04-1979 itself is registered Will and not brought for the first time after the death of their father. The trial court disbelieved the will only on the ground that, the Will is not proved as required under section 68 of Evidence Act as the attesting witnesses are not examined but the attesting witnesses are no more. Before the trial court one witness DW.2 is examined since both witnesses of the will are dead and not available. They could not be examined as the legal heirs or legal representatives of the deceased attesting witnesses address was not known. Now, it is found that they are residing and their address is known. The learned counsel has further argued that, will is not denied by the plaintiffs. When such contention taken in 14 the written statement no counter is filed by the plaintiffs denying the said will. It is further argued that, the said Chandrakant in whose name mutation is standing, is not made as a party though he is not a necessary party but he is proper party.
The learned counsel further argued that, the appellant has filed an application I.A. No.II under Order 41 Rule 27 of C.P.C. for leading additional evidence. If the defendant is not permitted to lead additional evidence to prove that the attesting witnesses are no more then it amounts to denying right of the defendant to prove the will by other evidence. If the application rejected at threshold, appellant will not be left with any alternative to prove will. As the attesting witnesses are no more and their legal representatives are not examined due to bonafide reasons appellant seeks to lead evidence of those witnesses as their address available now. The learned counsel also brought to the 15 notice of this court that, though the suit is filed in respect of one land and also house property. The house property is not at all described in the plaint and in fact the decree is also only in respect of agricultural land. There is no order, or judgment about the house property. The opportunity is not given to argue the case. The learned counsel brought to the notice the order sheet of the trial court and pointed out that before the trial court the counsel for the plaintiff or defendant have not at all argued the case and opportunity was not given. He brought to notice the order sheet of the trial court stating that, no opportunity was given to the defendant to lead evidence and immediately their side was closed and the matter was posted for evidence and on the same day the case was posted for further arguments. It is noted that, both the counsels are absent and the court pronounced the Judgment. It is unknown procedure. Even the opportunity for argument was not given and the Judgment was pronounced. The 16 trial court has not appreciated the evidence in proper perspective and it is evident from paragraph No.10 of the Judgment that, both sides have not at all argued their case. So, hurriedly the trial court has passed the Judgment.
The learned counsel further argued that, since DW.2 is not cross-examined by the plaintiff, the side of defendant was closed. He has further submitted that, the entire case of the defendant is based on the will. If appellant is not allowed to prove the same as required under Section 69 of Evidence Act by permitting him to adduce additional evidence, it amounts to denial of justice to the defendant. With these main grounds prays to set aside the Judgment and remand the matter by giving opportunity to both sides. In support of his arguments he relied upon following decisions:
1) ILR (Kar) 2005-0-1131 Sulochana Taiyeshwanti Ankolekar Vs Sunder
2) 1994 SCC (4) 294 Kenchegouda Vs Siddegouda & Motegowda 17 (Civil Appeal Nos.4347-48 of 1994 (Arising out of SLP ( C) Nos.13811-12/90)
3) AIR 2016 SC 3182 Union of India Vs K.V Lakshman & others
13. As against this, Sri. S. S. Mamadapur learned counsel for respondent argued that, the will is not at all proved by the plaintiff as required under section 68 of the Evidence Act. Admittedly the plaintiff and defendant are the sisters both are having equal share in the suit properties. The trial court has rightly answered the issues and considered the evidence. The Judgment of the trial court is just and proper. He has supported the Judgment of the trial court.
14. From the above materials and arguments the points that would arise for my consideration are as under:-
1. Whether the application filed by the appellant under Order 41 Rule 27 of C.P.C requires to be allowed?18
2. Whether the suit properties are available for partition, if so what are share of the parties?"
3. Whether the Judgment passed by the trial court is illegal, perverse and needs interference of this court?
15. My answer to the above points is as under for the reasons given below.
16. The undisputed contentions of the parties in this case are that, plaintiff No.1 and defendant are the sisters. They are the daughters of Shivalingappa. It is also not in dispute that, their mother plaintiff No.2 died during the pendency of the suit. It is also evident that, the suit is filed for agricultural land and one house. It is also undisputed that, both sides have not at all argued the case before the trial court. It is also undisputed that, attesting witnesses were not examined before the trial court and it is stated that the attesting witnesses are no more. They died long prior to filing of suit. It is 19 also evident from the Judgment and decree that, the trial court has considered only the agricultural land as the suit property and it has not made any discussion or granted any relief in respect of house property. In fact the decree is drawn only in respect of agricultural land.
In fact the trial court in second paragraph of the judgment has mentioned suit property as only agricultural land. The relief in respect of house property VPC number is neither stated in the Judgment nor anything is stated in the operative portion of the order. So, this itself indicates that, the trial court has not properly considered the pleadings of the parties and the evidence.
17. It is also evident that, the suit property VPC number is not mentioned in the plaint. As per the provisions of Order 7 Rule 3 of Code of Civil Procedure, if the suit is instituted in respect of immovable property the suit property it shall contain a description of property sufficient to identify it, and in case such 20 property can be identified by boundaries or numbers in record of settlement or survey the plaint shall specify such boundaries or numbers. Here no VPC number is mentioned, nor boundaries are mentioned, nor measurement is given. In fact no property extract in respect of suit house is produced. It is also evident that, DW.2 is not cross-examined by the plaintiff side. It is also evident from the order sheet that, the case is posted for arguments on 28-08-2015. On the same day it is observed by the Trial Court, no further arguments and Judgment was pronounced.
18. The main defense of the defendant is on the will deed. Admittedly it is a registered will deed. It is also evident that, name of Sharanappa S/o Basappa, Basavantappagouda S/o Doddapagounda, Ojeppa S/o Dandappa and Sharanappa S/o Sangappa were given as list of witnesses on behalf of defendant and the order sheet dated: 06-02-2015 indicates that the summons 21 were served but witnesses remained absent and thereafter DW.2 was present and he was examined, but the plaintiff has not cross-examined. It is treated that, plaintiff has no cross-examination.
19. Before giving finding on the merits of the trial court Judgment it is necessary to see whether the application filed by the appellant under Order 41 Rule 27 of Code of Civil Procedure is to be allowed. It is necessary to refer the said provision in C.P.C . It reads as under:-
Order 41 Rule 27.
Production of additional evidence in Appellate Court. -
(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if -
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or 1[(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any witness to be examined to 22 enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
In view of this provision it is to be seen whether the appellant has made out a case notwithstanding the due diligence he could not adduce evidence at the time when he adduced before the trial court.
20. It is evident that, the said will is stated to be executed on 04-04-1979 and it appears that, both the plaintiff and defendant No.2 were minors at that time and the plaintiff No.2 their mother is also no more. Therefore, it is not possible for both of them to know or ascertain the legal heirs of the said will. Simply because the defendant could not produce the documents about the death of attesting witnesses and as address of legal heirs of attesting witnesses were not found and the evidence is closed it is not a ground to deny the 23 additional evidence. The entire case revolve on whether the will is proved if not the parties being sisters are entitled for their half share. In fact the trial court has not considered the suit in respect of house property, not stated anything either allowing or dismissing the suit in respect of suit property. The arguments were also not heard. The order sheet of the Trial Court and Judgment indicates that no arguments were advanced either plaintiff or defendant side. No where it is brought to the notice of the court that, the said attesting witnesses are dead. It is evident that, the contention taken by the appellant in his affidavit to lead the additional evidence appears to be bonafide one.
21. The order sheet of the Trial Court and Judgment indicates that no arguments were advanced either plaintiff or defendant side. No where it is brought to the notice of the court that, the said attesting witnesses are dead. It is evident that, the contention 24 taken by the appellant in his affidavit to lead the additional evidence appears to be bonafide one.
22. In a decision relied on by the learned counsel for the appellant reported in AIR 2016 SC 3182 Union of India Vs K.V Lakshman & others wherein the Apex Court of India at paragraphs Nos.37 & 38 held as under:
37. Order 41 Rule 27 of the Code is a provision which enables the party to file additional evidence at the first and second appellate stage. If the party to appeal is able to satisfy the appellate Court that there is justifiable reason for not filing such evidence at the trial stage and that the additional evidence is relevant and material for deciding the rights of the parties which are the subject matter of the lis, the Court should allow the party to file such additional evidence. After all, the Court has to do substantial justice to the parties. Merely because the Court allowed one party to file additional evidence in appeal would not by itself mean that the Court has also decided the entire case in his favour and accepted such evidence. Indeed once the additional evidence is allowed to be taken on record, the appellate Court is under obligation to give opportunity to the other side to file additional evidence by way of rebuttal.
38. Coming to the case, since we have allowed the application made by the appellant under Order 41 Rule 27 of the Code and has permitted the appellant to file additional evidence then as a necessary consequence, the impugned order has to be set aside and respondents are granted an opportunity to file additional evidence in rebuttal, if they so wish to file.25
23. The Supreme Court of India in a decision reported in (1984) 3 Supreme Court Cases 531 in case of Nirankar Nath Wahi and Others V/s Fifth Additional District Judge Moradabad and Others reported in Civil Appeal No.2562 of 1984 dated: June 7, 1984 held as under:
Civil Procedure code, 1908 - Order 41, Rules 17 & 23 - Remand - Appellate judgment of Additional District Judge vitiated by denial of opportunity of hearing to a party (appellant) - Judgment set aside and matter remanded to District Judge for disposal in accordance with law. Further it is held at paragraph Nos.11 & 12 as under:
11. The second ground has also been substantiated in the sense that the appellant cannot be faulted for entertaining the misgiving that the procedure adopted was not in tune with one's sense of justice. The grievance this time arises on account of the fact that even through May 23, 1983 was fixed for hearing of further oral arguments, the learned Judge had kept a judgment ready for being pronounced and he proceeded to pronounce it forthwith whilst refusing the prayer for adjournment made by the appellant. It is not in dispute that on May 23, 1983 the learned Additional District Judge had granted three day's time to the appellant to enable him to engage an advocate to make further oral submissions. Since the matter was posted on May 23, 1983, for further oral arguments, the learned Judge could not have commenced writing his judgment till further arguments were heard on that day or the request for adjournment, if any, was refused. No objection could have been taken if on turning down the request for adjournment 26 on May 23, 1983, the learned Judge had commenced writing or dictating his judgment in the Court. But he had kept his judgment (dismissing the appeal) ready for being pronounced. When the appellant made a request for an adjournment for engaging an advocate, the request was turned down and the judgment, prepared in advance, dismissing the appeal, was straightaway pronounced. As we pointed out earlier, the learned Judge could be expected to be aware of the fact that the appellant being a landlord seeking an eviction order was not interested in unnecessarily prolonging the hearing of the appeal. He also could not have been unaware of the fact that the respondent was a leading member of the local Bar and an influential person and that under the circumstances a citizen who was pitted against him in a personal litigation was likely to feel that he was not getting just and fair treatment if the judgment was to kept ready in anticipation that the request for adjournment was going to be made and was going to be refused. Supposing no request for adjournment was made and a senior advocate had appeared on behalf of the appellant what would have happened? Before hearing his arguments, the learned Judge had already made up his mind and kept ready a judgment wherein he had reached the conclusion that there was no substances in the appeal. The embarrassing facts stare one in the eye. We do not think that fault can be found with the appellant if he felt, as any other litigant would have perhaps felt, that the procedure adopted was lacking in fairness. In fairness to the learned Judge, we must mention that in his order dated May 20, 1983, he had observed as under:
Appeal adjourned to May 23, 1983 for additional arguments failing which judgment would be pronounced. But the fact remains that the learned Judge could not have armed himself with a ready-made judgment dismissing the appeal when further arguments on behalf of the appellant were yet to be heard. And apparently there was no time-compulsion to pronounce the judgment on that very day. The judgment rendered by the learned Judge is thus vitiated by reason of the failure to grant reasonable opportunity of hearing to the appellant and by reason of the procedure adopted in connection with the preparation and pronouncement of 27 the judgment. Court rejected the petition summarily in the fact of these features and obliged the appellant to approach this Court.
12. Under the circumstances the appeal must be allowed. The judgment and order passed by the Allahabad High Court as well as those passed by the learned Additional District Judge are set aside and the matter remitted to the Court of the District Judge, Moradabad for being disposed of in accordance with law.
Keeping in mind the principles stated in the Judgment of the Supreme Court of India supra, if the present application of the appellant is considered, it is evident that, there are justifiable grounds for the appellant to lead additional evidence in order to decide the rights of the parties which are subject matter of the suit. In view of the facts and circumstances, and the principles stated in above, in my considered view the application filed under Order 41 Rule 27 of Code Civil Procedure deserves to be allowed and the additional evidence is permitted.
24. The trial court in considering Issue Nos.3 & 4 at paragraph No.16 page No.11 simply in one 28 sentence rejected the contention of the defendant regarding will stating that, the attesting witnesses of the will are not examined, so will cannot be accepted. This observation has resulted in miscarriage of justice. Admittedly none of the attesting witnesses were alive when the suit is filed. There is no occasion for the defendant to submit on this point as the arguments were not heard. Even the respondent counsel also submitted that the arguments were not advanced by both sides before the trial court. Further the trial court proceeded to write Judgment as if the suit property is only land bearing survey No.179/1 and nothing is stated or discussed about the second suit property i.e., house. The trial court not stated anything about granting or rejecting the relief in respect of house property. Hence in view of decision of the Supreme Court in case of Nirankar Nath Wahi and Others V/s Fifth Additional District Judge Moradabad and Others supra, the suit will have to be remanded back to the 29 trial court to permit additional evidence, to state about relief in respect of house property and also to advance arguments to both sides.
Accordingly I answer Point Nos.1 to 3 in the affirmative and pass the following:
ORDER The Regular First Appeal is allowed. I.A.No.II/2016 filed under Order 41 Rule 27 of Code of Civil Procedure is allowed.
The Judgment and decree passed by the trial court in O.S. No.133/2008 dated:02-08-2015 is hereby set aside.
The suit is remanded to the trial court with a direction to permit the defendant to adduce additional evidence of the witnesses in respect of the Will dated:
04-04-1979 as per the list of witnesses filed along with his application I.A.No.II/2016.
The evidence already led before trial court by the plaintiff and defendant before remand shall remain as 30 the evidence of plaintiff and defendant. The trial court shall proceed further only from the stage of permitting defendant to adduce additional evidence in the light of the observation made above.
The plaintiff is also entitled to lead rebuttal evidence in respect of additional evidence to be adduced by the defendant in respect of the said Will.
The trial court shall also give reasonable opportunity to both sides to argue the case.
Since the suit is of the year 2008, both sides shall assist the court in disposing of the case as early as possible.
The parties are directed to bear their own costs.
Send back the records secured to the concerned court forthwith.
Sd/-
JUDGE MNS