In The Goods Of vs Priyamvada Devi Birla(Deceased)

Sahidullah Munshi, J

The Court:- This general application has been filed by the plaintiff before this Court for recalling some of the deposition recorded during examination-in-chief of the propounder/plaintiff and to add some more in addition to those have already gone down at the time of recording deposition of the witness no. 1 when evidence in chief stood ended on 29th August, 2019 with question no. 1095, as the last question to the witness. The matter was adjourned on 1st September, 2019. However, on the request of Mr. Mitra, learned Senior Counsel examination-in-chief was not formally concluded.

On 29th August, 2019 when Mr. Mitra, learned senior counsel at the end of the examination-in-chief of the propounder submitted to record an order permitting his client to give rebuttal evidence on issue in respect of which onus lies on the defendants. He sought for reserving such option on behalf of his client after the recording of evidence of the attesting witness. Owing to paucity of time this submission could not be considered and the matter was adjourned till 3.9.19. When the matter was taken up learned counsel for the plaintiff draws Court's attention to this application which was affirmed on 2nd September, 2019 and was filed on the same day. In the said application some prayers have been made to record those submissions as indicated in the prayer. I have heard Mr. Ghosh, led by Mr. Mitra for the plaintiff and Mr. Kapoor for the defendants.

So far, prayer 'A(i)' is concerned the plaintiff seeks liberty and/or to reserve his right of option to adduce evidence in rebuttal to those issues in respect of which burden of proof lies on the defence. Upon hearing the parties it is ascertained from the issues annexed to this application at page 19 that burden of proof lies on the plaintiff in respect of all the issues because it is the plaintiff's onus to prove that the Will is genuine save and except issue nos.7 & 10. So far issue no.7 is concerned it is, undoubtedly, that burden of proof is on the defendant regarding fraud, coercion, undue influence and/or importunity as alleged in paragraph 15 of the written statement. So far issue no.10 is concerned, although, this is the averment made by the defendant in their written statement to show that the deceased had cordial relationship with all the members of the Birla family including the original defendant no.1 and the defendant no.2, it is perceived that the plaintiff through propounder led evidence and exhibited documents that the deceased had no such cordial relationship with the family members. Question arises whether further evidence is to be led on this issue by the defendant. Since extensive evidence has been brought on record centering round the relationship between the deceased and the family members, Mr. Kapoor, submits that no further evidence is required to be led by the defendants. The defendants submit only cross-examination of the propounder will be sufficient. However, it is made clear that in the event defendants lead any independent witness on issue nos. 7 &10. The plaintiffs will have option, which this Court allows, as a rebuttal evidence within the scope of Order XVIII Rule 3 of Code of Civil Procedure. Mr. Kapoor, while making his submission, although, rightly pointed out that this can be done at the relevant time when the defendants lead such evidence but the plaintiff on their misconceived apprehension prays before this Court to grant such liberty. Since this Court finds that in the event such liberty is granted the defendants will not be prejudiced, I allow the prayer A(i) that is to say the plaintiffs will be at liberty to lead rebuttal evidence only in respect of issue nos. 7 & 10 in the event the defendants lead any evidence on these issues.

So far prayer A(ii) is concerned it appears from order dated 18th July, 2019 annexed to this application being Annexure 'C' at page 46 at 60 where I have already held "....for the present propounder be discharged with liberty to further examination on call as indicated hereinbefore. However, liberty is granted to the propounder for further examination only after the attesting witness is examined....." Having regard to such recording in my order dated 18th July, 2019 nothing more should be recorded in the present order. Particularly, when I find that in question no.1055 this Court has already recorded the same. Question no.1055 is reproduced below:

"Q. 1055. Where is this document? / This document is with my advocate-on-record.

[To Court:- At the end of the deposition of the propounder Mr. Ghosh, learned senior counsel submits that since previously this Court passed an order that the propounder was not be permitted without first examining the attesting witness, he seeks to ask certain question on the one of the document being the Will after the examination of the attesting witnesses is completed. Such permission is granted for a limited purpose.]"

So far prayer A(iii) which in effect a prayer for recalling and/or deletion of an order of the Court already recorded in presence of both the parties and the witness, I am not inclined to allow such prayer by either recalling or deleting the same. Inasmuch as once something has been recorded in course of deposition of parties nothing can either be added or expunged or deleted from the proceeding without the matter being heard finally taking into consideration all other circumstances in which such recording was made by the Court.

So far prayer B(i) is concerned, it is undisputed that this Court directed for marking of documents referred to in question no. 1046 to be marked for identification refusing the plaintiff's prayer for marking those documents as exhibits. I, therefore, allow prayer B (i) recording that original copy and thumb impression register produced by an employee of the office of the Registrar of Assurances, Kolkata under subpoena dated 25th July, 2017 being GA No. 2428 of 2017 be taken on record and marked for identification.

So far prayer B(ii) is concerned, that becomes redundant in view of the recording already made in question no. 1051 wherein Court has already recorded "certified copy is marked for identification". So far prayer B(iii) is concerned, this appears to be superfluous in view of the recording already made in question nos. 1059 to 1061 which clearly indicates that the documents referred to have already been marked for identification with the comment "contents not proved".

Mr. Kapoor, learned Senior Counsel appearing for the defendants relies on a decision in a case of Smt. Indu Bala Bose & Ors. -Vs. - Manindra Chandra Bose and Anr. reported in (1982) 1 SCC 20 on the issue how the plaintiff in a probate proceeding is under heavy burden to discharge his onus with regard to dispelling suspicious circumstances. This judgment has been cited to show that almost all the issues except issue nos.7 & 10 are the issues where burden lies on the plaintiffs.

Mr. Kapoor also relies on a decision   in the case of   M. Gnanasekaran -Vs. - (1) Mothi Periyakaruppan (2) M. Malaichamy reported in (2017) 8 Mad LJ 342 to explain the scope of order XVIII Rule 3 of the Code of Civil Procedure. The decision deals with the provision of Order XVIII Rule 3 of the Code of Civil Procedure and has been relied on by Mr. Kapoor to justify the scope of the said order in the facts situation of the present case. According to Mr. Kapoor no such liberty can be granted. The decision was given in a Miscellaneous Appeal challenging an order by the District Judge allowing review prayer of the plaintiff. The respondent in the appeal filed O.S. No. 11 of 2014 before the Additional District Judge, Madurai seeking relief of partition of certain properties and for declaration that he is the trustee of the suit trust by enjoying one of the schedule properties. Plaintiff as well as the defendants are sons of one Late Mothi Ayyan Ambalam, who passed away on 2nd November, 2013. The second defendant who was appellant before the Court filed his written statement contending that suit for partition would not lie in view of execution of a registered Will dated 2nd March, 2017 in his favour by one Mothi Ayyan Ambalam. After the plaintiff examined himself and another witness on his side and his evidence was closed the appellant/second defendant as propounder of the Will dated 2nd March, 2007 examined himself and two of the ancestors. At the argument such plaintiff filed interlocutory application to reopen the case for further evidence, for recall of PW1 and for reception of additional documents. The learned Trial Judge allowed the interlocutory application. However, it was held that there was no provision contemplated in law to enable the plaintiff to adduce evidence rebutting the evidence of PWs 2 & 3. Therefore, the prayer for rebutting the evidence of D.Ws. 2 & 3 with regard to the execution and attestation of Exbit.B2 (Will) was rejected.

Aggrieved by the denial of the right to lead rebuttal evidence, the plaintiff filed application for review of the order and the review petition was allowed against which Civil Miscellaneous Appeal was filed before the High Court by the defendant (propounder). Court held onus lies on the defendant as he sought to establish Exbt. B2 (Will) and for which special mode of evidence through attestors have been prescribed under the Evidence Act. The Bench held that application for review was not maintainable. It was held that trial Court was not right in holding that the other party to the suit cannot rebut the evidence adduced by the propounder of the Will on the ground that onus lies only on the propounder in terms of Section 68 of the Evidence Act. It was further held that Ordr XVIII Rule 3 of CPC is applicable in such cases also and its existence was originally lost sight of. When the said error which is apparent on the face of the record was pointed out, the trial Judge rightly referred to the said provision and corrected the error. The Bench decision further points out that the real question in that case was not whether the plaintiff reserved the right to adduce rebuttal evidence. It was whether he is entitled to do so. The Bench decision held that even though, plaintiff led the evidence first, the option to reserve his right to let in rebuttal evidence would have been available to him only if he had abstained from leading evidence on this issue where the burden of proof lay only on the defendant. In that decision the plaintiff chose to let in positive evidence on the issue relating to the genuineness of the suit/Will. If the plaintiff had not led in such evidence in the first instance on the issue regarding the genuineness of the suit/Will since the burden lay only on the second defendant, then, he would certainly have had the right to adduce rebuttal evidence. The Bench held in that case on account of his own conduct, the plaintiff had forfeited his right to lead such a rebuttal evidence. This decision, therefore, does not fully support Mr. Kapoor.

In our case plaintiff is the propounder seeks to prove execution of the Will. Issue no. 7 is to be proved by the defendant undoubtedly and if any such evidence is led the plaintiff will have the right to lay rebuttal evidence, even after his evidence is concluded. So far, the issue no.10 is concerned, it is too early to hold that defendant will not lead any independent witness to support their defence case.

Therefore, the plaintiff' prayer to reserve option to lead rebuttal evidence would be subject to leading of evidence by the defendants. I therefore, allow the plaintiff's prayer to reserve their right to lead rebuttal evidence in the event it happens as indicated hereinbefore.

In our case, the plaintiff is the propounder and seeks to prove the case and execution of the Will. Issue No. 7 is to be proved by the defendant undoubtedly and if any such evidence is led, the plaintiff will have the right to lead rebuttal evidence even after this evidence is concluded. So far as issue no. 10 is concerned, it is too early to hold that the defendant will not lead any independent witness to support their defence. Therefore, the plaintiff's prayer to reserve option to lead rebuttal evidence would be subject to "leading of evidence by the defendants". I, therefore, allow plaintiff's prayer to reserve their right to lead rebuttal evidence in the event it happens as indicated hereinabove. The application is disposed of. Examination-in-chief of the propounder is hereby concluded. Defendants are allowed to cross examine the plaintiff/propounder.