SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 1 Friday, December 08, 2023
Printed For: Anirudh Setlur Krishnan, National Law University
SCC Online Web Edition: http://www.scconline.com
© 2023 Trinity Agencies, Chennai
-----------------------------------------------------------------------------------------------------------------------------------------------------------
2008 SCC OnLine Mad 900 : (2008) 6 CTC 123 : (2009) 3 Mad LJ 602
IN THE HIGH COURT OF MADRAS
S. RAJESWARAN, J.
C.R.P. (PD. Nos. 223 and 224 of 2006 and C.M.P. Nos. 3398, 3399, 3400 & 3401
of 2007
Decided on December 3, 2008
K. Subramani and 2 others … Petitioners
v.
P. Rajesh Khanna and another … Respondents
Law of Wills — Probate of Wills — Rejection of Plaint — Wills executed by Hindus outside City
of Madras, need not be necessarily probated — Suit cannot be rejected on ground that Will
was not at all probated — Moreover, when issues framed, trial commenced, witness
examined in chief and documents marked through him — It is better in interest of justice to
complete trial and decide all issues on merits.
The respondents/plaintiffs filed Suit for a permanent injunction restraining the defendants from
creating any alienation or encumbrance over the suit property till their life time. The revision
petitioner/defendants filed Application to reject the certified copy of Will marked as document and
another Application for rejecting the Plaint under Order 7, Rule 11, C.P.C. Both the Applications came
to be dismissed by the Trial Court and aggrieved by the same order the present Revision Petitions
under Article 227 of the Constitution of India arise.
Held :
From the judgments, relied on by the learned counsel, one thing is very clear with respect to Wills
executed by Hindus outside the City of Madras, it is unnecessary to take out a probate. It is true that
Madhya Pradesh High Court in Ram Shankar v. Balakoas, AIR 1992 MP rejected the Plaint on the
ground that the Will was not probated. But, the Judgment of the Hon'ble Supreme Court reported in
Mrs. Hem Nolini Judah (since deceased) and after her legal representative Mr. Marlean Wilkinson,
AIR 1962 (3) SCR (Supp) 294, was delivered in the context of a Will executed by a Christian and not
by a Hindu. Therefore, I am of the considered view that Plaint in O.S. No. 12 of 2004 could not be
rejected on the ground that the Will dated 30.11.1992 was not at all probated.
[Para 13]
Practice and Procedure — Rejection of Documents — Mere marking of certified copy of Will
does not prove Will — Objection regarding admissibility of document could be noted and
objected — Document could be marked tentatively as an Exhibit — Bipin Shantilal Panchal v.
State of Gujarat and another, (2001) 3 SCC 1, relied upon.
Further, Exh.A1 is a certified copy of the Will and merely marking the same, it cannot be stated
that it has been proved by the respondents/plaintiffs. Necessary issues have been framed in this
regard and the same could be gone into all the time of deciding the issues. Further, the Hon'ble
Supreme Court in Bipin Shantilal Panchal v. State of Gujaraj and another, (2001) 3 SCC 1, proposed
a new practice substituting the archaic practice according to which the objection raised regarding the
admissibility of any material could be noted and the objected document could be marked tentatively
as an Exhibit. This practice could be
Page: 124
adopted for all objections excepting to the objection relating to the deficiency of stamp duty of a
document which is to be decided before proceeding further.
[Para 15]
CASES REFERRED
SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 2 Friday, December 08, 2023
Printed For: Anirudh Setlur Krishnan, National Law University
SCC Online Web Edition: http://www.scconline.com
© 2023 Trinity Agencies, Chennai
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Balamani v. Kailasam Konar, 2000 (1) LW 476 —[Relied on] 7, 10
Bipin Shantilal Panchal v. State of Gujaraj, (2001) 3 SCC 1 8, 10
Clarence Pais v. Union of India, AIR 2001 SC 1151 8, 10
Hem Nolini Judah (since deceased) and after her Legal Representative, Mr. Marlean
Wilkinson, AIR 1962 (3) SCR (Supp) 294 —[Relied on] 7, 10, 13
J. Yashoda v. K. Shobha Rani, 2007 (3) CTC 781 7, 10
Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon, 2008 (1) CTC 80 8, 10
Namberumal Chetti v. Veeraperumal Pillai, AIR 1930 Mad. 956 8, 10
Perianayagam v. Maria Arokiam, 1996 (1) CTC 415 7, 10
Popat and Kotecha Property v. State Bank of India Staff Association, 2005 (4) CTC 489
(SC) 8, 10
Ram Shankar v. Balakoas, AIR 1992 MP 224 7, 10, 13
Srinivasa Pillai (died) v. K. Ragunathan, 1983 (1) MLJ 159 8, 10
T. Venkata Narayana, (1996) 4 SCC 457 7, 10
V. Ramaswami Aiyangar v. Mr. S.M.S. Sundaresan Chettiar, 1951 (2) MLJ 523 8, 10
Mr. A. Babu, Advocate for Petitioners in both C.R.Ps.
Mr. K.V. Anantha Krishnan, Advocate for Respondents in both C.R.Ps.
C.R.Ps. DISMISSED — NO COSTS — M.Ps. ALSO DISMISSED
Prayer: Both the Civil Revision Petitions are filed under Article 227 of Constitution of
India, against the Orders dated 29.04.2005 passed in I.A. Nos. 19 of 2005 and I.A.
No. 45 of 2005 in O.S. No. 12 of 2004 on the file of the District Munsif cum Judicial
Magistrate, Arcot.
JUDGMENT
1. The above Civil Revision Petitions are filed against the Orders dated 29.04.2005
passed in I.A. Nos. 19 of 2005 and I.A. No. 45 of 2005 in O.S. No. 12 of 2004 on the
file of the District Munsif cum Judicial Magistrate, Arcot.
2. As the parties and the issues involved are one and the same, a common order is
being passed to dispose of the Civil Revision petitions.
3. The defendants in O.S. No. 12 of 2004 are the revision petitioners before this
Court. O.S. No. 12 of 2004 was filed by the respondents/plaintiffs for a permanent
injunction restraining the defendants in the Suit from creating any alienation or any
encumbrance over the Suit schedule property till their lifetime.
4. The case of the plaintiffs in O.S. No. 12 of 2004 is that the Suit schedule
property originally belonged to their late grandfather P.C. Krishnasamy Chettiar.
During his life time their grandfather executed a registered Will dated 30.11.1992
bequeathing the schedule mentioned properties and other properties in favour of his
two sons namely the first defendant/first revision petitioner herein and the father of
the respondents/plaintiffs. As per the Will dated 30.11.1992, the Testator bequeathed
the schedule mentioned properties to the defendants 1 & 2/revision petitioners 1 & 2
to be enjoyed till their lifetime without creating
Page: 125
any encumbrance and after their lifetime, the properties should go to the legal heirs of
the plaintiff's father. But the plaintiffs/respondents herein came to know that the first
defendant/first revision petitioner executed a settlement deed on 26.4.2004 in favour
SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 3 Friday, December 08, 2023
Printed For: Anirudh Setlur Krishnan, National Law University
SCC Online Web Edition: http://www.scconline.com
© 2023 Trinity Agencies, Chennai
-----------------------------------------------------------------------------------------------------------------------------------------------------------
of his daughter, third defendant/third revision petitioners settling the suit schedule
properties in her favour. Hence, the respondents/plaintiffs filed O.S. No. 12 of 2004 for
the aforesaid relief.
5. The revision petitioners/defendants filed written statement and the Suit is being
contested. During trial, the revision petitioner herein filed I.A. No. 19 of 2005 to reject
the document marked as Exh.R1 and I.A. No. 45 of 2005 to reject the Plaint under
Order 7, Rule 11, C.P.C. The Trial Court by separate orders dated 29.4.2005 dismissed
both the Applications and aggrieved by the same, the defendants in the Suit filed the
above two Revision Petitions under Article 227 of the Constitution of India.
6. Heard the learned counsel appearing for the revision petitioners and the learned
counsel appearing for the respondents. I have also gone through the documents and
judgments filed in support of their submissions.
7. The learned counsel for the revision petitioners submits that Exh.A1 is a certified
copy of a Will and the same could not be admitted as a secondary evidence in the
absence of the procedure contemplated under Section 63 and 65 of the Indian
Evidence Act. He further contends that the entire Suit is based on the alleged Will,
which is not yet probated in the manner known to law as per Section 213 of the Indian
Succession Act and in such circumstances, the respondents/plaintiffs could not convert
the Civil Court into probate Court. According to the learned counsel, the Trial Court has
failed to consider the relevant Acts and its provisions and committed an illegality in
dismissing the applications. In support of his submissions, the learned counsel for the
petitioners relied on the following judgments.
1. Mrs. Hem Nolini Judah (since deceased) and after her Legal Representative, Mr.
Marlean Wilkinson, AIR 1962 (3) SCR (Supp) 294;
2. Ram Shankar v. Balakoas, AIR 1992 MP 224;
3. T. Venkata Narayana and others, (1996) 4 SCC 457;
4. J. Yashoda v. K. Shobha Rani, 2007 (3) CTC 781;
5. Perianayagam v. Maria Arokiam, 1996 (1) CTC 415 : 1996 (1) MLJ 328, and
6. Balamani v. Kailasam Konar, 2000 (1) LW 476.
8. Per Contra, the learned counsel for the respondents submits that no ground has
been made out by the revision petitioners to reject the plaint under Order 7, Rule 11,
C.P.C. He further contended that a Will executed by a Hindu in relation to a property
situated outside Madras need not be probated at all. He further adds that a Probate
Court cannot decide the title of
Page: 126
the property and therefore, the respondents/plaintiffs could very well agitate the
matter before the Trial Court. The learned counsel further urged that when relevant
issues are framed including the issue with regard to the Will and when the mater is in
the stage of cross examination of P.W.1, it is better to conduct a full Trial to decide the
issues rather than rejecting the Plaint abruptly at this stage. In support of his
submissions, the learned counsel for the respondents placed reliance on the following
decisions:
1. Namberumal Chetti v. Veeraperumal Pillai and others, AIR 1930 Mad. 956;
2. Clarence Pais and others v. Union of India, AIR 2001 SC 1151;
3. V. Ramaswami Aiyangar and another v. Mr. S.M.S. Sundaresan Chettiar and
others, 1951 (2) MLJ 523;
SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 4 Friday, December 08, 2023
Printed For: Anirudh Setlur Krishnan, National Law University
SCC Online Web Edition: http://www.scconline.com
© 2023 Trinity Agencies, Chennai
-----------------------------------------------------------------------------------------------------------------------------------------------------------
4. Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon and others, 2008 (1) CTC 80;
5. Srinivasa Pillai (died) and others v. K. Ragunathan, 1983 (1) MLJ 159;
6. Bipin Shantilal Panchal v. State of Gujaraj and another, (2001) 3 SCC 1;
7. Popat and Kotecha Property v. State Bank of India Staff Association, 2005 (4)
CTC 489 (SC) : (2005) 7 SCC 510.
9. I have considered the rival submissions carefully with regard to facts and
citations.
10. Considering the fact that a number of decisions have been relied upon by both
the learned counsel, I may consider them first to cull out the legal principles settled
thereon.
(1) In Mrs. Hem Nolini Judah (since deceased) and after her Legal Representative,
Mr. Marlean Wilkinson, AIR 1962 (3) SCR (Supp) 294, the Hon'ble Supreme Court held
that Section 213 (1) of the Indian Succession Act creates a bar to the establishment of
any right under a Will by an executor or a legatee unless the probate or letter of
Administration of a Will have been obtained.
(2) In Ram Shankar v. Balakoas, AIR 1992 M.P. 224, the M.P. High Court held that
in a Civil Court in a Suit instituted by any party claiming right, title and interest in any
property on the basis of a Will, no issue can be struck to decide if that Will was the
last Will. The jurisdiction of Civil Court as per Section 9, C.P.C. is impliedly barred not
only to decide such an issue but to take cognisance of such a Suit in which the plaintiff
himself raises such an issue. The Madhya Pradesh High Court after directing the Trial
Court in that case to return the Plaint to the plaintiffs and gave one months time to
approach the probate Court, if so deserved.
Page: 127
(3) In T. Venkata Narayana and others, (1996) 4 SCC 457, the Hon'ble Supreme Court
held as under:
“4. The only question is : whether the respondent is entitled to adduce secondary
evidence to prove the alleged Will said to have been executed by Venkata
Subbamma in her favour ? The admitted position is that in the partition Suit, after
the Succession Act came into force, namely, 28.8.1969 Venkata Subbamma had
compromised with her son and obtained a decree with covenants contained
therein. What is the effect of that decree is the subject-matter in the pending
Suit. Whatever rights that were available to her there under would be available to
the respondent who has come on record as legal representative. The mere Suit for
injunction cannot be converted into a Suit for probation of a Will whereat the Will
is to be proved. If the Will is to be proved according to law, it has to be by way of
a probate in the Court having competency and jurisdiction according to the
procedure provided under the Indian Succession Act, 1925. That procedure
cannot be converted in a suit for mere injunction as a probate Suit and direct the
parties to adduce evidence, be it primary or secondary evidence as the
circumstances may warrant. The High Court has committed error of law and
jurisdiction in directing adduction of secondary evidence in the Suit for injunction
to prove the Will alleged to have been executed by Venkata Subbamma.”
(4) In J. Yashoda v. K. Shobha Rani, 2007 (3) CTC 781, the Hon'ble Supreme Court
held that secondary evidence as a general rule is admissible only and in the absence of
primary evidence and if the original itself is inadmissible, party to the Suit is not
entitled to produce the secondary evidence. Only condition prescribed under Section
SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 5 Friday, December 08, 2023
Printed For: Anirudh Setlur Krishnan, National Law University
SCC Online Web Edition: http://www.scconline.com
© 2023 Trinity Agencies, Chennai
-----------------------------------------------------------------------------------------------------------------------------------------------------------
65 of Indian Evidence Act, documents can be admitted as secondary evidence.
(5) In Perianayagam v. Maria Arokiam, 1996 (1) CTC 415 : 1996 (1) MLJ 328, this
Court held that a right claimed under a Will executed by a Indian Christian cannot be
recognised by any Court of law unless probate or Letter of Administration is obtained
from a competent Court. The relevant portion reads as under:
“10. Even in the Plaint, it is said that the parties are Indian Christians and the
plaintiff has filed the Suit only on the basis of a Will alleged to have been
executed by his father. A right is claimed under a Will executed by an Indian
Christian cannot be recognised in any Court of Law unless Probate or Letters of
Administration is obtained from the competent Court. Admittedly, the plaintiff has
not obtained any Probate or Letters Administration.
11. Section 213(1) of the Indian Succession Act reads thus:
“No right as executor or legatee can be established in any Court of justice, unless
a Court of competent jurisdiction in India has granted probate of the Will under
which the right is claimed, or has granted
Page: 128
letters of administration with the Will nor with a copy of an authenticated copy of the
Will annexed.”
It is a total prohibition on the part of the legatee to establish his right as such
unless a probate or Letters of Administration is obtained.
13. In this case, admittedly, the plaintiff has not obtained any probate or Letters
of Administration. The Suit is based only on a Will. If the Will cannot be put
forward as a basis for claiming a share, the Suit can only be dismissed.”
(6) In Balamani v. Kailasam Konar, 2000 (1) LW 476, this Court recognised the
power of Court to reconsider the admissibility of a document though it is admitted by
inadvertance, or mistake or without considering its admissibility. The relevant portion
reads as under:
“9. In view of the said decision, the contention of the learned counsel is rejected.
The Court has power to consider the admissibility of a document though it is
admitted by inadvertence or mistake of without considering its admissibility.
There is no question of principle of estoppel or waiver for application in such
cases. If a law prohibits the admission of a document in evidence, Court cannot
admit the same merely because it was not objected or by the defendant merely
because the objection was taken belatedly. If a document is found to be
inadmissible in evidence and it is brought to the notice of Court, the Court is
bound to rectify the mistake.”
(7) In Namberumal Chetti v. Veeraperumal Pillai and others, AIR 1930 Mad 956, a
Division Bench of this Court held that Section 57 of the Indian Succession Act shows
that in the case of Wills executed outside Madras, probate must be taken of then only
in so far as they relate to immovable property situated within Madras. The Wills are
classified into (1) Wills and Codicils made by any Hindu on or after 1.9.1870 within
the local limits of the High Court's ordinary original Civil jurisdiction, and (2) all such
Will and codicils made outside those limits.
(8) In Clarence Pais and others v. Union of India, AIR 2001 SC 1151, the Hon'ble
Supreme Court held that a probate will not required to be obtained by a Hindu in
respect of a Will made outside those territories or regarding the immovable properties
situated outside those territories. The relevant portion reads as under:
“6. The scope of Section 213(1) of the Act is that it prohibits recognition of rights
SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 6 Friday, December 08, 2023
Printed For: Anirudh Setlur Krishnan, National Law University
SCC Online Web Edition: http://www.scconline.com
© 2023 Trinity Agencies, Chennai
-----------------------------------------------------------------------------------------------------------------------------------------------------------
as an executor or legatee under a Will without production of a probate and sets
down a rule of evidence and forms really a part of procedural requirement of the
law of forum. Section 213(2) of the Act indicates that its applicability is limited to
cases of persons mentioned therein. Certain aspects will have to be borne in mind
to understand the exact scope of this section. The bar that is imposed by this
Section is only in respect of the establishment of the right as an executor or
legatee and not in respect of the establishment of
Page: 129
the right in any other capacity. The Section does not prohibit the Will being looked into
for purposes other than those mentioned in the Section. The bar to the establishment
of the right is only for its establishment in a Court of justice and not its being referred
to in other proceedings before administrative or other Tribunals. The Section is a bar to
everyone claiming under a Will, whether as a plaintiff or defendant, if no probate or
letters of administration are granted. The effect of Section 213(2) of the Act is that the
requirement of probate or other representation mentioned in sub-section (1) for the
purpose of establishing the right as an executor or legatee in a Court is made
inapplicable in case of a Will made by Muhammadans and in the case of Wills coming
under Section 57(c) of the Act. Section 57(c) of the Act applies to all Wills and codicils
made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of January, 1927
which does not relate to immovable property situate within the territory formerly
subject to the Lieutenant Governor of Bengal or within the local limits of the ordinary
Civil jurisdiction of the High Courts of Judicature at Madras and Bombay, or in respect
of property within those territories. No probate is necessary in the case of Wills by
Muhammadans. Now by the Indian Succession (Amendment) Act, 1962, the Section
has been made applicable to Wills made by Parsis dying after the commencement of
the 1962 Act. A combined reading of Sections 213 and 57 of the Act would show that
where the parties to the Will are Hindus or the properties in dispute are not in
territories falling under Sections 57(a) and (b), sub-section (2) of Section 213 of the
Act applies and sub-section (1) has no application. As a consequence, a probate will
not be required to be obtained by a Hindu in respect of a will made outside those
territories or regarding the immovable properties situate outside those territories. The
result is that the contention put forth on behalf of the petitioners that Section 213(1)
of the Act is applicable only to Christians and not to any other religion is not correct.”
(9) In V. Ramaswami Aiyangar and another v. Mr. S.M.S. Sundaresan Chettiar and
others, 1951 (2) MLJ 523, A Division Bench of this Court held that when once it is
conceded that with respect to Wills executed by Hindus outside the city of Madras, it is
unnecessary to take out a probate in order that the device under the Will should be
effective, the question will arise as to whether any order by a Court directing the issue
of a probate will necessarily involve the compulsory deposit of stamps necessary for
the issue of the probate.
(10) In Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon and others, 2008 (1) CTC
80, the Hon'ble Supreme Court held that probate Court was not competent to
determine whether the Testator had or had not the authority to dispose of the
properties he purported to have bequeathed by his Will and the Probate Court is also
not competent to determine the question of title to the suit properties.
(11) In Srinivasa Pillai (died) and others v. K. Ragunathan, 1983 (1) MLJ 159, this
Court held that nobody can dispute the general principle that a
SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 7 Friday, December 08, 2023
Printed For: Anirudh Setlur Krishnan, National Law University
SCC Online Web Edition: http://www.scconline.com
© 2023 Trinity Agencies, Chennai
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Page: 130
person in peaceful possession is entitled to be maintained in possession against all but
the true owner and the Suit by such a person for an injunction against any other
person threatening to dispossess him is maintainable.
(12) In Bipin Shantilal Panchal v. State of Gujaraj and another, (2001) 3 SCC 1, the
Hon'ble Supreme Court depricated the practice that during the evidence collecting
stage, whenever any objection is raised, regarding admissibility of any material in
evidence, the Court does not proceed further without passing orders on such objection.
Such practices when realised through the course of long period to be hindrances which
impede study and swift progress of trial proceedings. Instead of the archaic practice
being prevalent now, the Hon'ble Supreme Court substituting a new practice,
according to which whenever an objection is raised during evidence taking stage
regarding the admissibility of any material, the Trial Court can make not of such
objection and mark the objected document tentatively as an exhibit subject to such
objection to be decided at the last stage in the final judgment. However, the Hon'ble
Supreme Court made it clear that if the objection relates to deficiency of stamp duty of
a document, the Court has to decide the objection before proceeding further.
(13) In Popat and Kotecha Property v. State Bank of India Staff Association, 2005
(4) CTC 489 (SC) : 2005 (7) SCC, the Hon'ble Supreme Court held that Order 7, Rule
11(d), C.P.C. applies only where the statement as made in the Plaint without any
doubt or dispute shows that the Suit is barred by any law in force and it does not
apply in case of any disputed question.
11. In the light of the above judgments, now I may consider the facts of the
present case to find out whether the plaint in O.S. No. 12 of 2004 is to be rejected and
the document marked as Exh.A1, which is the certified copy of the Will is to be
rejected.
12. The Plaint averments if read as a whole, Will show that according to the
respondents/plaintiffs, the Suit schedule property could never be alienated by the
revision petitioners 1 & 2 and defendants 1 & 2 during their lifetime and hence they
sought for the relief of permanent injunction. The entire claim of respondents/plaintiffs
is based on a Will dated 30.11.1992 said to have been executed by their grand father.
The case of the revision petitioners/defendants is that the first defendant is the
absolute owner of the property and the first defendant's father (grandfather of the
respondents/plaintiffs) during his lifetime made an oral family arrangement in the year
1990 allotting the suit property to him and therefore, the first defendant became the
absolute owner of the properties allotted to him. In such circumstances, the Trial Court
has framed necessary issues including the execution of the Will and the ownership of
the first revision petitioner. It is not in dispute that the Trial has already commenced
and during the chief examination of P.W.1, a certified copy of the Will dated
30.11.1992 was
Page: 131
marked as Exh.A1 and when the Suit was posted for cross-examination of P.W.1, the
revision petitioners filed I.A. No. 19 of 2005 and I.A. No. 45 of 2005 for the aforesaid
reliefs.
13. From the judgments, relied on by the learned counsel, one thing is very clear
with respect to Wills executed by Hindus outside the City of Madras, it is unnecessary
SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 8 Friday, December 08, 2023
Printed For: Anirudh Setlur Krishnan, National Law University
SCC Online Web Edition: http://www.scconline.com
© 2023 Trinity Agencies, Chennai
-----------------------------------------------------------------------------------------------------------------------------------------------------------
to take out a probate. It is true that Madhya Pradesh High Court in Ram Shankar v.
Balakoas, AIR 1992 MP rejected the Plaint on the ground that the Will was not
probated. But, the Judgment of the Hon'ble Supreme Court reported in Mrs. Hem
Nolini Judah (since deceased) and after her Legal Representative, Mr. Marlean
Wilkinson, AIR 1962 (3) SCR (Supp) 294, was delivered in the context of a Will
executed by a Christian and not by a Hindu. Therefore, I am of the considered view
that Plaint in O.S. No. 12 of 2004 could not be rejected on the ground that the Will
dated 30.11.1992 was not at all probated.
14. That apart considering the fact that issues have been framed, Trial has
commenced, P.W.1 was examined in chief and documents were marked through him,
it is better in the interest of justice to complete the Trial and decide all the issues on
merits.
15. Further, Exh.A1 is a certified copy of the Will and merely marking the same, it
cannot be stated that it has been proved by the respondents/plaintiffs. Necessary
issues have been framed in this regard and the same could be gone into all the time of
deciding the issues. Further, the Hon'ble Supreme Court in Bipin Shantilal Panchal v.
State of Gujaraj and another, (2001) 3 SCC 1, proposed a new practice substituting
the archaic practice according to which the objection raised regarding the admissibility
of any material could be noted and the objected document could be marked
tentatively as an Exhibit. This practice could be adopted for all objections excepting to
the objection relating to the deficiency of stamp duty of a document which is to be
decided before proceeding further.
16. In the light of the above Hon'ble Supreme Court judgment, I am of the
considered view that Exh.A1 could not be rejected as contended by the revision
petitioners.
17. In the result, I do not find any merit in the above two Civil Revision Petitions
and the same are dismissed. No costs. Connected Civil Miscellaneous Petitions are also
dismissed.
18. However, I make it very clear that all issues are left open to be decided by the
Trial Court at the time of disposing of the Suit and the Trial Court should decide all the
issues on merits and in accordance with law independently without getting influenced
by the observations made in this order.
MEHEK
———
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.
