BALA Vs. PREM CHAND VISHWAKARMA

JUDGEMENT

(1.) Heard.

(2.) The petitioner is the defendant appellant. The plaintiff opposite party had filed a suit for partition alleging that his father Sri Ganga Dutt had purchased a property through his own funds and had left behind three heirs, namely, the plaintiff, the husband of the petitioner as well as a daughter. The petitioner resisted the suit contending that by an oral family settlement, the property in question had been given to the petitioner's husband and, therefore, the plaintiff has no right or share in the said property. In paragraph 15 of the written statement, it was further alleged that Sri Ganga Dutt had executed a will in favour of the husband of the petitioner and that the said will has been misplaced and as and when it is traced out, it would be filed before the trial court.

(3.) The suit was decreed and the property was partitioned. The petitioner, being aggrieved, filed an appeal and, during the pendency of the appeal, found the will executed by her father-in-law in the year 1982. Accordingly, the petitioner filed an application under Order 41 Rule 27 of the C.P.C. to produce the will, executed by Sri Ganga Dutt, 2 as additional evidence contending that after a search, the will was found. The lower appellate court after considering the matter rejected the application on the ground that the appellant was trying to delay the hearing of the appeal. The petitioner, being aggrieved, has filed the present writ petition.