SARASWATHI Vs. THANGAVEL

JUDGEMENT

(1.) These Civil Revision Petitions are filed challenging the order passed by the First Appellate Court allowing the applications filed by the petitioners to produce additional evidence under Order 41 Rule 27 of CPC and lead oral evidence by examining legal representatives of attestors to Will dtd. 19/7/1966.

(2.) The petitioners herein filed a suit for partition against the respondents. The respondents 1 and 2 who were arrayed as defendants 3 and 4 filed their written statement and resisted the suit inter alia by relying on the Will executed by Subbaiya Gounder dtd. 22/7/1965 in favour of their mother Kuppathal. A certified copy of the Will was marked as Ex.B3 before the trial Court. However, the original Will was not marked and the attestors to the Will were also not examined. The Trial Court decreed the suit by observing that the Will relied on by the petitioners could not be taken into consideration in the absence of production of original Will and examination of attestors to the Will.

(3.) Aggrieved by the judgment and decree passed by the trial Court, the petitioners preferred First Appeal in A.S.No.41 of 2018 on the file of the IV Additional District and Sessions Judge, Coimbatore. Pending First Appeal, the petitioners filed two applications under Order 41 Rule 27 and 28 of CPC in I.A.Nos.1 and 2 of 2019. The I.A.No.2 of 2019 was filed for production of original Will dtd. 19/7/1966 which was already in the custody of the trial Court and xerox copy of the said Will attested by State Bank of India. The I.A.No.1 of 2019 was filed for examining the legal representatives of the attestors of the Will who are no more. The said applications were opposed by the petitioners on the ground that the respondents 1 and 2 cannot be allowed to fill up lacuna by resorting to applications under Order 41 Rule 27 and 28 of CPC. The First Appellate Court on consideration of the rival submissions came to the conclusion that the original Will was already in the custody of the Court and hence in the interest of justice and to have effective and complete adjudication, the petition for production of additional evidence filed by the respondents 1 and 2 shall be allowed.