M GNANASEKARAN Vs. MOTHI PERIYAKARUPPAN @ M MAHARAJAN

JUDGEMENT

(1.) Heard the learned counsel for both parties.

(2.) The first respondent herein filed O.S.No.11 of 2014 on the file of V Additional District Judge, Madurai seeking the relief of partition in respect of A,B and C schedule properties and for declaration that he is the Trustee of the suit Trust by enjoying the D schedule properties. The plaintiff as well as the defendants are sons of late Mothi Ayyan Ambalam, who passed away on 02.11.2013. The second defendant who is the appellant herein filed his written statement contending that a suit for partition will not lie in view of execution of a registered Will dated 02.03.2007 in his favour by Mothi Ayyan Ambalam. After the plaintiff examined himself and another witness on his side and closed his evidence, the appellant as the propounder of the Will dated 02.03.2007 examined himself and two of the attestors. When the matter was posted for arguments, the plaintiff filed I.A.Nos.729 to 731 of 2016 for re-opening the case for further evidence, for recall of P.W.1 and for reception of additional documents. The learned trial Judge allowed I.A.No.729 of 2016 in O.S.No.11 of 2014 on 16.12.2016. However, in paragraph No.14 of the said order, it was held that there is no provision contemplated in law to enable the plaintiff to adduce evidence rebutting the evidence of P.Ws.2 and 3. Therefore, the prayer for rebutting the evidence of D.Ws.2 and 3 with regard to the execution and attestation of Ex.B2 Will was rejected.

(3.) Aggrieved by the denial of the right to lead rebuttal evidence, the plaintiff filed I.A.No.87 of 2017 for reviewing the order dated 16.12.2016 made in I.A.No.729 of 2016 in O.S.No.11 of 2014. The review petition was allowed on 05.04.2017. Aggrieved by the said order, this civil miscellaneous appeal has been filed.