HIGH COURT OF JUDICATURE AT MADRAS
P.R. SHIVAKUMAR, J.
Palaniammal
Versus
Karuppusamy Sounder & Others
C.R.P (PD) No. 1373 of 2012 & M.P. No. 1 of 2012
Decided on: 13-01-2015
Civil Procedure Code, 1908 - Order XVIII - Rule 1 – Succession - Suit for declaration of title – Will- Execution of - Suit filed by petitioner is resisted by respondents contending that Will propounded by petitioner is a forged one - A similar contention has been raised by petitioner in suit filed by respondents (brothers) - Whether trial Court is wrong in directing the revision petitioner lead evidence in proof of Will propounded by her before ever respondents would be called upon to prove their case based on the Will propounded by them as last Will and Testament of Avinashi Gounder - Admittedly, Avinashi Gounder died on in event of both Wills being genuine, second Will, propounded by respondents will supersede Will as according to respondents, earlier Wills executed by testator came to be revoked by Will - Held, Plaintiff has right to begin unless defendant admits facts alleged by plaintiff and contends that either in point of law or on some additional facts alleged by defendant the plaintiff is not entitled to any part of relief which he seeks, in which case defendant has right to begin - In accordance with Order XVIII Rule 1 C.P.C., contention of petitioner cannot be countenanced - Respondents have not admitted the contention of petitioner that Avinashi Gounder executed the Will relied on by revision petitioner - The rule simply deals with right of parties to begin on premise that party who begins case shall have an advantage over other party - When parties to suits are placed on equal footing and both parties are not prepared to waive their right to begin the case, then it shall be decided by the Court as to who is to lead evidence at first instance in proof of his case - Civil Revision Petition is dismissed.
1. In a fight between the sister and brothers in respect of succession to the property of the father, two suits came to be filed, the first one being O.S.No. 146 of 2005 on the file of the learned District Munsif, Gobichettipalayam filed by the sister on 27.04.2001 and the other suit being O.S.No. 488 of 2004 on the file of the learned District Munsif, Gobichettipalayam filed on 30.04.2001 by the brothers for declaration of title claimed by the rival parties to one and the same properties.
2. The claim of the sister is based on a Will dated 07.12.1976; whereas the claim of the brothers is based on a Will dated 22.03.2000, both claimed to be executed by Avinashi Gounder, the father of the parties. The suit filed by the petitioner is resisted by the respondents contending that the Will dated 07.12.1976 propounded by the petitioner is a forged one. A similar contention has been raised by the petitioner in the suit filed by the respondents (brothers). Since both the suits have been filed in respect of the estate of the deceased Avinashi Gounder based on the above said Wills, each claiming the respective Will propounded by them to be the last Will and testament of Avinashi sounder, the respondents filed a petition before the trial Court in I.A.No. 61 of 2012 in O.S.No. 488 of 2004 for joint trial of both the suits and for recording common evidence for both the suits in O.S.No. 146 of 2005 which was admittedly filed earlier in point of time. Besides seeking joint trial and recording of common evidence for both the cases in O.S.No. 146 of 2005, the respondents had also prayed therein that the revision petitioner should be called upon to lead evidence in proof of the Will dated 07.12.1976 propounded by her.
3. It was contended by the revision petitioner that since the respondents were relying on the Will which was executed later in point of time as the last Will and Testament of the testator Avinashi Gounder, the necessity to prove the Will propounded by her would arise only in case of the respondents' failure to prove the Will dated 22.03.2010 and that hence, the respondents should be directed to lead evidence before ever the petitioner shall be called upon to lead evidence. The learned trial Judge, after hearing both sides, sustained the contentions of the respondents herein and rejected the contention of the revision petitioner. Accordingly, by an order dated 25.01.2012, joint trial of O.S.No. 146 of 2005 and O.S.No. 488 of 2004 was ordered with a direction to record common evidence for both the suits in O.S.No. 146 of 2005, with a further direction that the revision petitioner, namely, the plaintiff in O.S.No. 146 of 2005 should lead evidence at the first instance in proof of the Will propounded by her.
4. Aggrieved by and challenging the said order, not in respect of its entirety but in respect of that portion which directs the revision petitioner to lead evidence at the first instance in proof of the Will propounded by her, the present Revision has been filed.
5. The arguments advanced by Mr.A.V.Arun, learned counsel appearing for the petitioner and by Mr.R.T.Doraisamy, learned counsel appearing for the respondents are heard. The materials available on record are also perused.
6. The short point that arises for consideration in the revision is, whether the trial Court is wrong in directing the revision petitioner (the plaintiff in O.S.No. 146 of 2005) to lead evidence in proof of the Will dated 07.12.1976 propounded by her before ever the respondents (plaintiff in O.S.No. 488 of 2004) would be called upon to prove their case based on the Will dated 22.3.2000 propounded by them as the last Will and Testament of Avinashi Gounder. Admittedly, Avinashi Gounder died on 23.06.2000. In the event of both the Wills being genuine, the second Will, namely, the Will dated 22.03.2000 propounded by the respondents will supersede the Will dated 07.12.1976, as according to the respondents, the earlier Wills executed by the testator came to b
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