( 1 ) THIS appeal has been preferred by the plaintiff/appellant against the order passed by learned Single Judge on 16. 12. 1999 during the course of recording the statement of Smt. Kaushalya Jhingran, D. W. I. By the said order objection of learned counsel for the appellant was turned down that the original will dated 13. 11. 1975 be not taken on record and be not allowed to be proved.

( 2 ) AFTER notice was issued in this appeal, learned counsel for the respondent raised an objection about maintainability of appeal, which has been filed under Section 10 of the Delhi High Court Act, 1966. It is this question of maintainability of the appeal, which is being considered by us.

"the plaintiff/appellant filed a suit for partition against defendants/respondents No. 1 and 2. The parties are brother and sisters. It was averred that Dr. (Major) Prem Narain Mehra died at Delhi on 11. 12. 1975 leaving behind the parties to the suit as his heirs and on the death of Dr. (Major) Prem Narain Mehra, his estate devolved upon the appellant and the respondents having l/3rd share each therein and prayed for a decree for possession by partition directing separation of the appellant l/3rd share therein by metes and bounds. "

( 3 ) SUIT was contested by respondent No. 1. After plaintiffs evidence, the suit was posted for defendants evidence. IA 8907/97 was filed by the defendant praying that the original Will dated 13. 11. 1975 of Dr. (Major) Prem Narain Mehra may be directed to be kept in sealed cover. On 12. 9. 1997 the application was decided by directing that Will be kept in sealed cover. IA. 9307/97 was filed by defendant under Order 13 Rule 2 of the Code of Civil Procedure seeking permission to produce the said Will.

( 4 ) ON 22. 10. 1977 the Will dated 13. 11. 1975 of Dr. Prem Narain Mehra was taken out of the sealed cover. Objection was raised by learned counsel for the plaintiff that the said Will had been produced in Court much beyond the time allowed to the defendants to file documents. The defendants had not sought permission to file it. Therefore, the same be not permitted to be taken on record. This objection was overruled. The Will was allowed to be taken on record and the delay in late filing of documents was condoned subject to payment of Rs. 300. 00 as costs. Learned Single Judge thereafter proceeded to record part statement of Dr. S. Kumar, as D. W. I on behalf of the defendants. Remaining examination of the witness was deferred. The defendants had not by that date appeared as witness in the suit.

( 5 ) FEELING aggrieved by the said order an appeal [fao (OS); No. 112/98] was preferred by the plaintiff, which was disposed of by Division Bench on 13. 8. 1998 observing that learned Single Judge was not justified in recording the stement of defendants witness before examining the defendant without assigning any reason. Accordingly, the order dated 22. 10. 1977 was set aside. The Will, which had been exhibited was ordered to be de-exhibited.

( 6 ) ON 16. 9. 1999 the defendant appeared as her own witness as DW. 1. During the course of her statement, sealed parcel containing original Will dated 13. 11. 1975 was opened. Again an objection was raised by learned counsel for the plaintiff that Will was not filed at proper time and was produced unauthorisedly. He objected to the Will being taken on record stating that the Will was earlier sought to be proved through DW. 1 Dr. S. Kumar on 22. 10. 1977, which was objected to by him but the objection was overruled. The order taking the will on record was challenged in appeal, which was allowed. Order dated 22. 10. 1997 was set aside. Therefore, it Will not be permissible to permit the said Will to be taken on record. By the impugned order the appellant is objection was overruled observing that the order of Division Bench dated 13. 8. 1998 did not set aside that part of the order by which the Will was taken on record. The said order only directed de-exhibition of the Will.

( 7 ) LEA