KAMALABEN V KOTAK Vs. RATILAL R KOTAK

JUDGEMENT

(1.) HEARD the learned advocates for the parties and perused the papers. It transpires that during the pendency of the appeal arising out of Special Civil Suit No.225 of 1998 filed for the purpose of partition of the suit properties before the lower appellate court, an application Exh.5 in the said appeal being Civil Appeal No.2 of 2006, came to be tendered for additional evidence, making allegation against the learned advocate representing the defendants to an effect that during the course of hearing of the suit the learned advocate did not advise the defendants to adduce the evidence in relation to the will, the xerox copy of which was produced on the record of the trial court. By impugned order the trial court remanded the appeal for a limited purpose of production of the will and adducing additional evidence in relation to such will. The petitioner ­ original plaintiff is aggrieved by said order and therefore he is before this Court.

(2.) HAVING considered the arguments advanced by the parties and also necessary documents on record, it cannot be disputed that the issue in relation to validity of the will was raised before the trial court. The xerox copy of the will also formed the record of the trial court, and for want of original will and evidence in relation thereto, the trial court discarded it. It, however, also declined to accept the contention raised by the plaintiff that by subsequent writing the predecessor of the parties had refuted the voluntary execution of will by him. Thus the learned trial Judge did not reach to any specific conclusion in relation to the will except as above. Be it noted that the plaintiff had admitted the existence of the will but had challenged its legality in the plaint. Once having admitted the existence of the will, its legality and validity was required to be addressed. Under such circumstances, when the lower appellate court remanded the matter for the above purpose, this Court is unable to find any infirmity in the impugned order.

(3.) THE suit is of the year 1998 and therefore it is deemed appropriate to direct the trial court to complete the required exercise within a period of three months from the date of receipt of writ of this Court. The parties also undertake to cooperate with the trial court in the above exercise, and if the trial court notices noncooperation from any of the parties, it shall be open for it to proceed with the matter and decide the same in accordance with law.