1. Heard the learned counsel for both parties.

2. The first respondent herein filed O.S.No.11 of 2014 on the file of V Additional District Judge, Madurai seeking the relief of partition in respect of A, B and C schedule properties and for declaration that he is the Trustee of the suit Trust by enjoying the D schedule properties. The plaintiff as well as the defendants are sons of late Mothi Ayyan Ambalam, who passed away on 02.11.2013. The second defendant who is the appellant herein filed his written statement contending that a suit for partition will not lie in view of execution of a registered Will dated 02.03.2007 in his favour by Mothi Ayyan Ambalam. After the plaintiff examined himself and another witness on his side and closed his evidence, the appellant as the propounder of the Will dated 02.03.2007 examined himself and two of the attestors. When the matter was posted for arguments, the plaintiff filed I.A.Nos.729 to 731 of 2016 for re-opening the case for further evidence, for recall of P.W.1 and for reception of additional documents. The learned trial Judge allowed I.A.No.729 of 2016 in O.S.No.11 of 2014 on 16.12.2016. However, in paragraph No.14 of the said order, it was held that there is no provision contemplated in law to enable the plaintiff to adduce evidence rebutting the evidence of P.Ws.2 and 3. Therefore, the prayer for rebutting the evidence of D.Ws.2 and 3 with regard to the execution and attestation of Ex.B2 Will was rejected.

3. Aggrieved by the denial of the right to lead rebuttal evidence, the plaintiff filed I.A.No.87 of 2017 for reviewing the order dated 16.12.2016 made in I.A.No.729 of 2016 in O.S.No.11 of 2014. The review petition was allowed on 05.04.2017. Aggrieved by the said order, this civil miscellaneous appeal has been filed.

4. The learned counsel for the appellant contended that the second defendant, who is the appellant herein is the propounder of Ex.B2 Will. Therefore, the onus to prove the same lies on him. In view of Section 68 of the Evidence Act, a special mode of proof is contemplated in the case of Wills. He has to examine atleast one of the attestors. Will being a special kind of document, it has to be proved to the satisfaction of the Court. Therefore the question of leading rebuttal evidence in the case of Wills cannot arise. He also pointed out that the plaintiff had closed his side and did not reserve his right to lead rebuttal evidence. More than anything else, there was no error apparent on the face of the record and a petition for review would not lie. In support of his contention, he relied on the decisions rendered by the High Court of Punjab and Haryana, particularly the one reported on AIR 2007 Punjab 1 (Surjith Singh Vs. Jagtar Singh). The Division Bench of the Punjab and Haryana High Court held that the plaintiff has to exercise his option to reserve the right to lead evidence of rebuttal at the time of the close of his evidence. The last stage for exercising option to reserve the right of rebuttal can well be before the other party begins its evidence. The learned counsel for the appellant contended that in this case, the plaintiff having failed to reserve his right at the appropriate stage cannot be allowed to file an application for leading rebuttal evidence after the defence has closed their side.

5. Rebutting the arguments advanced by the learned counsel for the appellant, Thiru.V.Meenakshisndaram, learned counsel appearing for the contesting respondents relied on the decision reported in AIR 1992 AP 97 (DB) (Nalajala Narasayya V. Nalajala Sitayya). He contended that the option to reserve the right of rebuttal need not always be express, but, it can also be implied from the facts of the case. In this case, the plaintiffs cannot be faulted for having adduced evidence first in view of the decision of this Court reported in 2017(1) CTC 305 (P. Lingasamy V. B. Premavathy). Order 18 Rule 3 of C.P.C. specifically enables the party beginning to produce evidence b