A party is entitled to lead evidence in rebuttal to rebut the evidence led by the other party on an issue, even if the onus of proving that issue was initially upon the party seeking to lead the rebuttal evidence.

V.K.Bali, J.

1. Challenge herein is to an order dated 31.3.1999 passed by the learned Subordinate Judge declining the prayer of the petitioner who happens to be a plaintiff in the main lis to adduce additional evidence by way of producing a handwriting expert.

2. Before the contentions of the learned counsel representing the parties for and against are noticed, it will be useful to extract, even though in brief, facts culminating into filing of the present petition.

3. Petitioner herein, namely Kashmir Kaur happens to be young widow of Balbir Singh. The husband of the petitioner died on 15.5.1991 when the petitioner was only 23 years of age. An unsavoury dispute immediately on demise of Balbir Singh came into offing when none other than the mother-in-law of the plaintiff resisted inheritance of the estate left by Balbir Singh to the petitioner. This led to the filing of the civil suit by the petitioner who propounded a Will. It was stated that the husband had executed a Will and the petitioner would succeed to the entire estate-left by Balbir Singh. This suit was resisted by the respondent-mother-in-law who naturally challenged the due execution and validity of the Will. The learned trial Court on the pleadings of the parties, thus, framed an all important issue; "Whether Balbir Singh executed a Will dated 6.2.1991 in favour of plaintiff Kashmir Kaur? OPP.

4. In her endeavor to discharge the onus of issue referred to above, the petitioner examined two witnesses; one scribe and one attesting witness of the Will. Sufficient evidence having been led with regard to due executing and validity of the Will, naturally, onus shifted to the respondent to rebut the said evidence. An application was made before the trial Court to examine a handwriting expert to determine as to whether the signatures of the testator appended on the Will were genuine. The said application was allowed and the handwriting expert was examined on behalf of the respondent mother-in-law. It is at this stage that the present application was filed for producing additional evidence under Order 18 Rule 17-A of the Code of Civil Procedure permitting the petitioner also to examine the hand-writing expert, obviously with a view to show that the signatures appended on the Will by the testator were genuine. As mentioned above, it is this application of the petitioner which has been dismissed and it is the said order which has been impugned in the present petition.

5. Before I might determine the controversy in light of the contentions raised by the learned counsel representing the parties, it will be useful to mention that civil matters are decided on preponderance of evidence and the onus of an issue, be it initially placed on one party or the other, keeps on shifting during the currency of the trial. In a given case like the present, where onus of issue regarding execution and validity of the Will was on the plaintiff i.e., petitioner herein, it was discharged by examining the scribe and one of the attesting witnesses of the Will. The petitioner, in fact, endeavoured to discharge the onus placed on her by examining independent witnesses. In rebuttal, as mentioned above the respondent chose to examine the handwriting expert with a view to show that the signatures of Balbir Singh appended on the Will were not genuine. It is too well settled that execution and validity of a Will is proved by direct evidence i.e. by examining scribe and witnesses of the concerned document and that evidence of an expert, in the present case, evidence of Handwriting Expert, is only an opinion and, therefore, it may not be absolutely essential for a party to examine a handwriting expert in the first instance i.e. at the time of examining evidence in affirmative. However, the moment respondent examined the handwriting expert, petitioner could well take it that the onus again shifted on her to rebut the said evidence. In these circumstances, it was perhaps not a case which may strictly f