JUDGMENT :

SABYASACHI BHATTACHARYYA, J.

1. The present appeal has been preferred against the grant of probate in respect of a Will in favour of the respondent.

2. Learned counsel for the appellant assails the impugned judgment granting probate primarily on the ground that the issues in the testamentary suit were framed subsequent to the evidence being led by both the parties, whereafter an application filed by the propounder/respondent for adoption of the propounder’s witnesses’ evidence was allowed. Even thereafter, when the present appellant, who disputed the grant of probate, made an application for cross-examination of P.W. 1 and P.W. 2 on recall, on the ground that the adoption of evidence of P.W. 1 and P.W. 2 tantamounted to adduction of fresh evidence, entitling the present appellant to further cross-examine such witnesses, the learned Trial Judge refused to grant the same.

3. It is contended by learned counsel for the appellant that in the event a party is permitted to adopt its witnesses’ evidence, it tantamounts to adduction of fresh evidence. The effect of such fresh evidence would be that the earlier evidence adduced by the self-same witnesses gets nullified, thereby reopening an opportunity to the other side to cross-examine the witnesses on the freshly adduced evidence.

4. In support of such contention, learned counsel cites K.K. Velusamy vs. N. Palanisamy,  (2011) 11 SCC 275, Ayaaubkhan Noorkhan Pathan vs. The State of Maharashtra & Ors.  AIR 2013 SC 58 and an unreported judgment in the matter of M/s Andaman Timber Industries vs. Commissioner of Central Excise, Kolkata-II, passed in Civil Appeal No. 4228 of 2006.

5. Learned counsel also argues that it was recorded by the testamentary court in Order No.104 dated April 17, 2019 that time was sought by the propounder/present respondent for filing a death certificate. It is sought to be contended that the said order itself indicates that there was no death certificate of the testator on record on the relevant date and, as such, such death certificate must have been permitted to be adduced in evidence subsequently. It is contended that such further evidence also entitled the appellant to cross-examine the propounder’s witnesses.

6. Learned counsel appearing for the propounder/respondent opposes the contentions of the appellant and argues that even without the adoption of the evidence already led by P.W.1 and P.W.2, the effect would be that the learned testamentary court would be at liberty to look into the evidence adduced earlier. As such, it is submitted that no fresh evidence could be said to have been led merely by adoption of the earlier evidence which was already on record. Thus, no fresh right could have been said to be created in favour of the present appellant to further cross-examine the propounder’s witnesses.

7. Learned counsel next points out that an earlier prayer of similar nature, seeking to recall P.W. 1 and P.W. 2 for the purpose of cross- examining them afresh, had already been refused by the learned Trial Judge and, as such, the learned testamentary court was justified in refusing the second similar prayer in any event.

8. Upon a careful consideration of the materials on record, we find that nothing turned on the order dated April 17, 2019, in which the testamentary court had merely recorded that the propounder had sought for time to file a death certificate. There is nothing on record to show whether the death certificate was filed or proved later.

9. In any event, learned counsel for the appellant does not pursue this line of argument further.

10. Insofar as the supposed right of the appellant to further cross-examine the propounder’s witnesses, we do not find substance in the contention of the appellant.

11. Before the testamentary court, the pleadings of both the parties were already on record and the parties went to trial knowing fully well the issues which would have to be addressed by them in their evidence.

12. Moreover, the propounder adduced two witn