PUSHPA DEVI Vs. PARMA AND OTHERS

JUDGEMENT

(1.) This revisional application has been filed by Smt. Pushpa Devi, one of the daughters of Ram Pratap Patwa who died purportedly on 14.11.1984. Unfortunately there are two Wills left by the deceased and the present petitioner claims a bequest by virtue of the Will dated 11.11.1984 executed by her father Ram Pratap Patwa, whereas her other sisters, Smt. Parma and Smt. Kamla contended that their father Ram Pratap Patwa executed a Will dated 12.11.1984 giving a bequest, inter alia, in favour of Smt. Parma and it has further been contended that the Will, as claimed by the present petitioner Smt. Pushpa Devi, was a forged one. The learned District Judge, Sawaimadhopur in civil misc. petition No. 96/1986 framed several issues as to the genuineness of both the Will and also framed another issue as to what would be the result of the dismissal for default of civil misc. petition No 28/85. The case was posted for hearing on 2.5.1992 for evidence of the petitioner Smt. Pushpa Devi. On that date she did not examine anybody and the Court, vide its order dated 26.11.1994 passed an order closing the evidence on her side. The matter was then fixed for recording of evidence of the opposite parties. The opposite parties examined four witnesses, and their evidence was closed on 17.5.1995. On 17.5.1995 the present petitioner filed on application purportedly under O. 18, R. 3, read with Sec. 151 Code of Civil Procedure and prayed that she may be allowed to lead rebuttal evidence on issues No. 3 and 4, as to the genuineness of the Will dated 12.11.1984 executed by Late Ram Pratap Patwa in favour of Smt. Parma and on the question about dismissal of civil misc. petition No. 28/85. The said application was opposed by the opposite parties and the learned District Judge ultimately rejected the application by his order dated 24.7.1995. Being aggrieved by the said order, the present revisional application has been filed.

(2.) The learned advocate for the petitioner contended before me by referring to the provisions of O. 18 Rr. 2 and 3 of the CPC, that even though the petitioner did not produce any evidence of her own in support of her case as to the genuineness of the Will dated 11.11.1984, or execution and attestation thereof, she was not precluded from lading rebuttal evidence as regards the case that the respondent-opposite party Smt. Parma was called to prove in support of her case of proving the other Will dated 12.11.1984, purportedly executed in her favour by her father.

(3.) I have considered the matter with minute introspection. It is indeed true that in support of her case as to the genuineness of the Will dated 11.11.1984, purportedly executed by Late Ram Pratap Patwa, the present petitioner has not led any evidence and in that particular perspective, the respondent had also not been called in to disprove any case allegedly sought to be made out by her, since no evidence was led on her behalf. That does not mean that the respondent Smt. Parma wins her case regarding the genuineness of the Will dated 12.11.1984, allegedly executed by her father .in her favour. She has to prove the said case on the basis of her own evidence and since she is the propounder in respect of the other conventional Will dated 12.11.1984, she has to prove not only the execution and attestation of the said Will but also remove all surrounding suspicious circumstances regarding existence thereof and that case she had signally to prove if she leads evidence in that regard and that evidence has to be recorded and against that background, the present petitioner has to prove a case of rebuttal. Only thereafter can all the issues be said to have been tried by the Court.