N C KALADHARAN Vs. KAMALESWARAN

JUDGEMENT

(1.) Can the propounder of a will, who is a defendant, insist that he should be examined as a party only after his witnesses including the Sub Registrar and the Attestors are examined ? This is the question that arises for decision in this revision.

(2.) In a suit for partition the revision petitioner, who is the 5th defendant raised a contention that one of the items in the plaint schedule is not partible for the reason that it is covered by a will executed by the mother of the parties in the year 1982. Pursuant to the replication denying the validity of the will the Court decided that the defendants should open the evidence in the case. The 1st defendant then filed I.A. No. 330/95 praying that the District Registrar, Trivandrum be directed to produce before the Court the original will dated 30-8-1982 along with the envelope concerned and all other connected records. That was disallowed stating that the 1st defendant and his counsel could peruse the documents in the presence of the District Registrar, Trivandrum, get attested copies thereof for production and that the production of original could be considered at the trial stage. He subsequently filed I.A. No. 5830/98 praying that he might be allowed to adduce counter evidence regarding the will after completing the evidence of the 5th defendant. The Court ordered on the petition "Kept in abeyance for decision after the evidence of the plaintiff". It was, thereafter, that the petitioner filed I.A. No. 4860/99 praying that he be allowed to examine the District Registrar, Scribe and the Attestors of the will at the 1st instance and that his own examination be postponed until the said witnesses are examined.

(3.) It was argued before the trial Court that only when the will is proved there is scope for adducing evidence of the parties. The Court, however, did not find merit in the contention. It was observed that the proof of the will has nothing to do with examination of the party and that the burden of proof in the case is on the propounder and that he has to open the case. The petition, it was observed, was filed with ulterior motives. The petition was hence dismissed.