- (1.) This general application has been filed by the plaintiff before this Court for recalling some of the deposition recorded during examination-in-chief of the propounder/plaintiff and to add some more in addition to those have already gone down at the time of recording deposition of the witness no. 1 when evidence in chief stood ended on 29th August, 2019 with question no. 1095, as the last question to the witness. The matter was adjourned on 1st September, 2019. However, on the request of Mr. Mitra, learned Senior Counsel examination-in-chief was not formally concluded.
(2.) On 29th August, 2019 when Mr. Mitra, learned senior counsel at the end of the examination-in-chief of the propounder submitted to record an order permitting his client to give rebuttal evidence on issue in respect of which onus lies on the defendants. He sought for reserving such option on behalf of his client after the recording of evidence of the attesting witness. Owing to paucity of time this submission could not be considered and the matter was adjourned till 3.9.19. When the matter was taken up learned counsel for the plaintiff draws Court's attention to this application which was affirmed on 2nd September, 2019 and was filed on the same day. In the said application some prayers have been made to record those submissions as indicated in the prayer. I have heard Mr. Ghosh, led by Mr. Mitra for the plaintiff and Mr. Kapoor for the defendants.
(3.) So far, prayer 'A(i)' is concerned the plaintiff seeks liberty and/or to reserve his right of option to adduce evidence in rebuttal to those issues in respect of which burden of proof lies on the defence. Upon hearing the parties it is ascertained from the issues annexed to this application at page 19 that burden of proof lies on the plaintiff in respect of all the issues because it is the plaintiff's onus to prove that the Will is genuine save and except issue nos.7 & 10. So far issue no.7 is concerned it is, undoubtedly, that burden of proof is on the defendant regarding fraud, coercion, undue influence and/or importunity as alleged in paragraph 15 of the written statement. So far issue no.10 is concerned, although, this is the averment made by the defendant in their written statement to show that the deceased had cordial relationship with all the members of the Birla family including the original defendant no.1 and the defendant no.2, it is perceived that the plaintiff through propounder led evidence and exhibited documents that the deceased had no such cordial relationship with the family members. Question arises whether further evidence is to be led on this issue by the defendant. Since extensive evidence has been brought on record centering round the relationship between the deceased and the family members, Mr. Kapoor, submits that no further evidence is required to be led by the defendants. The defendants submit only cross-examination of the propounder will be sufficient. However, it is made clear that in the event defendants lead any independent witness on issue nos. 7 &10. The plaintiffs will have option, which this Court allows, as a rebuttal evidence within the scope of Order XVIII Rule 3 of Code of Civil Procedure. Mr. Kapoor, while making his submission, although, rightly pointed out that this can be done at the relevant time when the defendants lead such evidence but the plaintiff on their misconceived apprehension prays before this Court to grant such liberty. Since this Court finds that in the event such liberty is granted the defendants will not be prejudiced, I allow the prayer A(i) that is to say the plaintiffs will be at liberty to lead rebuttal evidence only in respect of issue nos. 7 & 10 in the event the defendants lead any evidence on these issues.;