The burden to prove adoption lies with the plaintiff before the defendant must present their case regarding the 'WILL'.

O R D E R

This civil revision petition arises against the order passed by the learned Additional District Munsif at Cuddalore in I.A.No.465 of 2023 in O.S.No.2 of 2020 dated 19.12.2023.

2.The civil revision petitioner is the 3^rd defendant in the suit.

3.O.S.No.2 of 2020 is a suit for the following reliefs: (i)To declare that the plaintiff as the legal heir of deceased T.Dhandapani, S/o.Thangavel, (ii)To pass a decree of mandatory injunction directing the 5^th defendant to issue the legal heir certificate to the plaintiff that he is the legal heir of deceased T.Dhandapani, S/o.Thangavel.

4.The case of the plaintiff is that on 18.12.1997, one Dhandapani, S/o.Thangavel, had adopted the plaintiff as his son. He had also made him as a nominee in certain records. The said Dhandapani passed away on

16.11.2019. He died intestate. Therefore, the plaintiff had applied for legal heirship certificate, which was not issued to him. This was on account of the fact that the defendants 1 to 3 were the class-II heirs of the said Dhandapani, creating a cloud over his title. Hence, the suit for the aforesaid releifs.

5.The 3^rd defendant filed a detailed written statement. He pleaded that alleged adoption of the plaintiff is a false one. He added that Dhandapani had executed a “WILL” when he was in a sound disposing state of mind on 12.09.2019. By virtue of this “WILL”, the 3^rd defendant claimed that he had succeeded to the estate.

6.On these pleadings, issues were framed and the parties were pushed to trial. At that stage, the plaintiff filed an application in I.A.No.465 of 2023 invoking Section 151 of Code of Civil Procedure . He submitted as the 3^rd defendant has pleaded title by virtue of the “WILL”, it is his duty to prove the “WILL” first. Thereafter, he would enter the witness box.

7.This application was opposed by the 3^rd defendant. The 3^rd defendant pleaded that unless and until the adoption is proved, the plaintiff will not get a right to succeed to the estate. He pointed out that the plaintiff could win over the witnesses to the “WILL”, creating disadvantage to the case of the 3^rd defendant.

8.The learned Trial Judge, on consideration of the affidavit and counter, came to a conclusion that the 3^rd defendant claiming a right through the “WILL”, has to prove the “WILL” first and only thereafter, the plaintiff has to enter the witness box and prove the adoption. Aggrieved by the same, the present civil revision petition.

9.I heard Mr.P.K.Harinath Babu for the civil revision petitioner and Mr.D.Ravichander for the respondent.

10.The learned counsel reiterated the contentions that were placed before the Court below.

11.I have carefully considered the submissions and gone through the impugned order.

12.The normal rule in terms of Order XVIII is that the plaintiff has the right to begin. However, power is retained by the Court to direct the defendant to enter the witness box first, if certain facts have to be proved by the defendant as a condition precedent to continue with the defence in the suit. To give an example, if the relationship between the parties is not in dispute and a suit for partition is filed between the siblings and one of the siblings projects a “WILL”, then the Court can direct the propounder of the “WILL” to enter the witness box first and prove the same. This is because, in case the “WILL” is not proved and the relationship being admitted, it becomes an easy task for the Court to decide the suit. This principle however cannot be extended to facts as in the present case.

13.It is not in dispute that defendants 1 to 3 are class-II heirs of the deceased Dhandapani. The plaintiff is projecting the adoption for the purpose of disturbing this natural course of succession. Unless and until adoption is proved, the question of the 3^rd defendant proving the “WILL” does not arise.

The burden is heavy on the plaintiff to prove adoption. Unless and until this burden is discharged, the turn of the defendant does not arise. This is because, in case ad