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21. Mr. Narula is correct in his submission, therefore, that the provisions of Order XVIII Rule 3-A of the CPC that the Plaintiff should enter the witness box first cannot apply at all to contested testamentary proceedings. As he rightly points out, the provisions of that order are directory and not mandatory.3 Mr. Narula is also Sanjay Narayanrao Barde & Anr. v Sau Vimal Keshaorao Bairam & Ors. 2000 (Supp.) Bom. C.R. 513.

13 of 17 903-TS-33-98-D'SOUZA V D'SOUZA.DOC correct in relying on the decision of a learned Single Judge of the Delhi High Court (R.C. Lahoti, as he then was) in Sudir Engineering Company s Nitco Roadways Ltd.4 (6) Let me now look at the law. Any document filed by either party passes through three stages before it is held proved or disproved. These are: First stage: when the documents are filed by either party in the Court; these documents though on file, do not become part of the judicial record; Second stage: when the documents are tendered or produced in evidence by a party and the Court admits the documents in evidence. A document admitted in evidence becomes a part of the judicial record of the case and constitutes evidence. Third stage: the documents which are held proved, not proved or disproved'when the Court is called upon to apply its judicial mind by reference to Section 3 of the Evidence Act. Usually this stage arrives at the final hearing of the suit or proceeding.

23. In this view of the matter, and as a matter of invariable practice for such contested proceedings relating to proof of wills and testamentary dispositions in their solemn form, the provisions of Sections 68, 69 and 71 of the Indian Evidence Act being mandatory, and notwithstanding the provisions of Order XVIII Rule 3-A of the Code of Civil Procedure, 1908, it is the evidence of the attesting witness that must always be led first. If he is unavailable or denies execution of the will then the provisions of Sections 69 and 71 of the Evidence Act must be followed. In any event, the execution of the will must be proved before the propounder of the will is examined (unless the propounder is also an attesting witness). Upon execution of the will being proved in this manner, the will must be marked as an exhibit in evidence. This admission of the will in evidence does not mean that it cannot be challenged or disproved. The decision of Lahoti, J in Sudir Engineering covers exactly such a situation. It is always open to the defendant to prove, for instance, that, though the will's execution is attested to and it is marked in evidence, the will a fabrication, obtained by undue influence and so on. In the words of the Delhi High Court, the right of a party disputing the document to argue that the document was not proved is not taken away by its admission in evidence. The party challenging the will can yet demonstrate that the will was not proved as required by law.