The court reaffirms the need for strict proof of evidence, specifically regarding wills, and recognizes the necessity for fresh trial proceedings in civil suits.

ORAL JUDGMENT

This matter is listed for admission. Heard the learned counsel for the appellant.

2. This miscellaneous second appeal is filed challenging the order of remand passed by the First Appellate Court. The First Appellate Court in paragraph No.31 of its judgment having taken note of the issue of Will, which has been relied upon by the Trial Court, comes to the conclusion that unless the scribe and the attesting witnesses are examined, the question of coming to such a conclusion by the Trial Court is erroneous. The First Appellate Court also made an observation that the Trial Court has forgotten the golden rule of appreciation of evidence and the document of Ex.D.35 is shrouded in mystery, as such it requires strict proof. The document of Ex.D.35 is the Will deed. The First Appellate Court also relies upon the document of Ex.D.36 and comes to the conclusion that unless these two documents are proved by examining the attesting witnesses, the matter requires remand for fresh trial. The First Appellate Court in paragraph No.33 of the judgment made the discussion with regard to the filing of the suit within the prescribed limitation period of 12 years from the date of cause of action on the ground that Syed Mohiuddin died on 28.01.1985. The present suit came to be filed on 24.11.1995, it means within 12 years from the date of death of late Mohiuddin, as succession opens only after his death. Having considered the same, the First Appellate Court comes to the conclusion that the Trial Court erred in holding that the suit is time barred by relying upon the judgment of the Delhi High Court in the case of SMT. DAYA DEVI v. SMT. AANGURI DEVI AND OTHERS reported in AIR 2002 Delhi 295. Having taken note of the issue of limitation, both in respect of question of fact and question of law, the First Appellate Court comes to the conclusion that the matter requires fresh disposal in accordance with law and remanded the same.

3. The learned counsel for the appellant would contend that the appellant is a bonafide purchaser and onus of proving that the benefit of Muslim Personal Law is applicable to the contesting respondents, was on them, in as much as, it was for them to prove that they belong to the Shuni Sect of Muslims and the Muslim Personal Law (Shariat) Application Act, 1937 applies to them. The learned counsel contend that while remanding the matter for fresh disposal, rendered conclusive finding that the Will is fraudulent. The learned counsel contend that the observation of the First Appellate Court that the Will is shrouded with suspicion, ought not to have been made when the witnesses have not been examined. There is a force in the contention of the learned counsel for the appellant that the First Appellate Court ought not to have made such an observation. Hence, the said finding is set aside as the matter is remanded to the Trial Court to consider the issue afresh with regard to proving of the documents Exs.D.35 and 36 and when the remand was made, coming to the conclusion that the Will is shrouded with suspicion, is erroneous.

4. With these observations, the appeal is disposed of.

The matter requires fresh consideration in view of the observation made by the First Appellate Court with regard to proving of documents Exs.D.35 and 36 and I do not find any error in remanding the matter for fresh consideration by the First Appellate Court except the above observation. If any issue requires to be framed, the Trial Court can frame the issue or re-cast the issues and consider the matter afresh by giving an opportunity to the respective parties.