PANKAJAKSHAN Vs. PRABHAKARA MENON

JUDGEMENT

(1.) The defendants 5, 6 and 7, who are the review petitioners herein filed OP(C) No. 729/2019, challenging the common order in IA. Nos. 465/2019 and 466/2019 in OS. No. 208/2014 of the Principal Sub Court, Irinjalakuda.

(2.) In a suit for partition, the defendants claimed exclusive title on the basis of the will. The genuineness of the will was sought to be established. To prove it, they examined DW 4. After this examination, defendants filed IA. Nos. 465/2019 and 466/2019, to reopen the evidence and to examine the witness to support the will. The applications were dismissed by the court below, holding that the parties have to follow the procedure contemplated under Section 68 of the Indian Evidence Act and reliance on other evidence cannot be a substitute to Section 68 of the Indian Evidence Act. The court relied on the decision of the Hon'ble Supreme Court in (Jagdish Chand Sharma v. Narain Singh Saini (Dead) Through His Lrs and Others 2015 KHC 4346).

(3.) The above common order was challenged in the above O.P.(C). After hearing both sides, the OP(C) was dismissed by this court by judgment dated 6.3.2019, holding that the court below, had correctly evaluated that Section 71 of the Indian Evidence Act cannot be a substitute to the provisions under section 68 of the Indian Evidence Act and the legal position laid down by the Hon'ble Supreme Court in Jagdish Chand's case (supra) was correctly followed by the trial court. However, this court held that certain observations made by the trial court regarding the quality of evidence let in through DW 4, was pre-mature and amounted to pre-judging the evidentiary value of that witness.