Second Appeal No.69 of 1988,Second Appeal No.70 of 1988

28th July, 2004

Petitioner Counsel: Shri. M. R. DESHPANDE , Ms. A.R.S. BAXI
Respondent Counsel: Shri. M. V. SALI , Shri. ARUN PALEKAR

JUDGMENT

JUDGMENT :-Both the aforesaid Second Appeals were admitted by this Court on 26th February, 1988 by passing the following order:

"Whether a grave miscarriage of justice has occurred in the case because (1) the 1st Appellate Court having found that the revocation letter dated 3-9-1971 fulfills all requirements of revocation did not hold it to be proved, and (2) found the Will dated 26-4-1966 in favour of Deosthan proved when no attesting witness was examined ? Admit."

I have heard the learned Counsel appearing for the parties in both the Second Appeals. Considering the controversy involved in the Appeals, the same are being disposed of by a common judgment.

2. For the sake of convenience, the parties are referred to with reference to their status in the trial Court in Reg.Civil Suit No.586 of 1976. Second Appeal No.69 of 1988 arises out of the decree passed in Reg.Civil Suit No.586 of 1976. The Respondents in the said Second Appeal are the original Plaintiffs in Reg. Civil Suit No.586 of 1976 and the Appellant is the original Defendant No.1. Second Appeal No.70 of 1988 arises out of Reg.Civil Suit No.555 of 1976. The said suit is filed by Defendant No.1 in Reg. Civil Suit No.586 of 1976. The Plaintiffs in Reg. Civil Suit No.586 of 1976 are the Defendants in Reg. Civil Suit No.555 of 1976.

3. The Defendant No.1 Dattusingh is the nephew of one Sundarabai. Sundarabai is the widow of Govind Singh who was the uncle of Defendant No.1 Dattusingh. Admittedly the property which is the subject matter of both the suits is held by Sundarabai. The dispute is as regards the Wills executed by the said Sundarabai. The Plaintiff No.1 in RCS No.586 of 1976 is a charitable trust registered under the Bombay Public Trusts Act 1950 and the other Plaintiffs are the Trustees of the said Trust. The said Sundarabai died on 5th September, 1971. The case of the Plaintiffs is that Sundarabai executed a registered Will dated 26th April, 1966 in favour of the Plaintiff No.1-Trust and by virtue of the said Will, the said property was bequeathed by Sundarabai is favour of the Plaintiff No.1-Trust. Therefore, the said Reg. Civil Suit No.586 of 1076 is for declaration that the Trust has become owner of the suit property by virtue of the said Will. The prayer in the suit is for possession of the property subject matter of the Will and for mesne profits. The case of the Defendant No.1 Dattusingh appears to be that there was one more Will executed in May, 1971 by Sundarabai and that the Will dated 26th April, 1966 has been revoked by the said subsequent Will. Regular Civil Suit No.555 of 1976 filed by the said Dattusingh is prior in time. The suit filed by the said Dattusingh is for declaration that he has become owner of the properties of Sundarabai by virtue of Will of May 1971 and Will dated 26th April, 1966 executed by Sundarabai stands revoked. Therefore, it appears that an order was passed in Regular Civil Suit No.586 of 1976 under section 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code"), on 10th June, 1980 by which the said suit was stayed till disposal of Regular Civil Suit No.555 of 1976. It appears that by passing further orders on the plaint at Ex.1, the trial Court proceeded to decide Regular Civil Suit No.586 of 1976 in the absence of Defendant No.1 Dattusingh after his Advocate filed "no instruction pursis". The said suit was decreed on 30th January, 1984. In so far as Regular Civil Suit No.555 of 1976 is concerned, it was pending before another learned Judge and by Judgment and Decree dated 9th February, 1984, the said suit was dismissed. Therefore, Defendant No.1 Dattusingh filed two separate Appeals in the District Court for challenging the Judgments and Decrees passed by the trial Court in the said suits. By a common Judgment dated 27th November, 1987, the learned Addl. District Judge, Solapur, dismissed the said Appeals preferred by the Defendant No.1-Dattusingh.

4. Being aggrieved by the Judgments and Decrees passed by both the Courts below these two Second Appeals have been filed.

5. I have heard Shri. Deshpande appearing for the Appellants in both the appeals and Shri. Sali appearing for the Respondents is Second Appeal No.69 of 1988 and Shri. Joshi appearing for Respondent Nos.1 to 3A, 3B and 4 in Second Appeal No.70 of 1988.

6. Shri. Deshpande, the learned Counsel appearing for the Appellants in both the Appeals pointed out that Regular Civil Suit No.586 of 1976 was stayed by exercising power under section 10 of the said Code. He submitted that the said order passed under section 10 of the said Code was neither set aside nor recalled by the learned trial Judge and therefore, the learned trial Judge could not have proceeded with the hearing of the said suit, unless Regular Civil Suit No.555 of 1976 was decided. He submitted that there was no ground to set aside or recall the said order staying Regular Civil Suit No.568 of 1976 under section 10 of the said Code. He submitted that once a case was made out for stay of the suit under section 10 of the said Code, the trial Court has committed a serious illegality and irregularity by proceeding with the hearing of the said suit notwithstanding the pendency of the earlier suit.

7. The learned Counsel for the Appellant further submitted that the Advocate appearing for the Appellant had filed a "no instruction pursis" in Regular Civil Suit No.586 of 1976 without giving any intimation to the Appellant/Defendant No.1-Dattusingh. He pointed out that as the hearing of the said suit was stayed, the Defendant No.1 was not under an obligation to attend the various dates fixed in the suit after the order of stay was passed. As no instruction pursis filed by the Advocate without any intimation to the Defendant No.1, he could not remain present in Court. The learned trial Judge could not have framed issues in the suit and proceeded to hear the suit on merits on the basis of evidence led in the form of an affidavit. Shri. Deshpande further submitted that no fault can be found with the Defendant No.1-Dattusingh if he remained absent on the date fixed for hearing of the said suit as the suit was stayed. He submitted that the order by which the suit was stayed under section 10 of the said Code could have been revoked and/or recalled only after giving an opportunity of being heard to the Defendant No.1-Dattusingh. He submitted that the Decree passed in Reg.Civil Suit No.586 of 1976 be set aside and the suit should be remanded to the trial Court to enable Dattusingh to lead evidence.

8. Shri. Deshpande further submitted that there is a clear evidence on record to prove that the Will dated 26th April, 1966 was revoked. He submitted that document evidencing revocation of the said Will was executed in accordance with the law and the same was duly attested as per the requirement of the law. He submitted that once attestation of the document and execution of the said document was proved, it is obvious that the Will dated 26th April, 1966 was revoked. He submitted that the subsequent Will executed in favour of Defendant No.1-Dattusingh was duly proved and therefore, he submitted that the Plaintiffs in Reg.Civil Suit No.586 of 1976 will not get any title on the basis of the said Will which was revoked and the bequest made by the deceased Sundarabai in favour of Defendant No.-1 Dattusingh by the Will executed in May, 1971 was valid.

9. Shri. Sali, the learned Counsel appearing for the Plaintiff in Reg. Civil Suit No.586 o f1976 submitted that in Reg.Civil Suit No.555 of 1976 the Defendant No.1 has admitted execution of the Will dated 26th April, 1966 and therefore, unless revocation of the said Will or execution of the subsequent Will was proved, the bequest made by the Will dated 26th April, 1966 will be legal and valid. He submitted that the so called instrument of revocation of the Will relied upon by the Defendant No.1-Dattusingh was not referred to and relied upon either in the plaint filed in Reg.Civil Suit No.555 of 1976 or in the written statement filed by him in Reg.Civil Suit No.586 of 1976. He submitted that the document is exfacie suspicious inasmuch as the case of Defendant No.1 is that the said document was not found when inventory of articles of Sundarabai was prepared after her death.

10. Shri. Sali further submitted that though there is no specific order passed in Suit No.586 of 1976 revoking the earlier order of stay passed under section 10 of the said Code, the subsequent order passed on Exh.1 has the effect of setting aside the earlier order to stay. He submitted that execution of the Will dated 26th April, 1966 is admitted by the Defendant No.1-Dattusingh and the finding recorded in Civil Suit No.586 of 1976 is that the said Will is proved. He submitted that even assuming that there is some illegality committed by the trial Court in proceeding with the hearing of the suit which was stayed, no purpose will be served by remanding the matter as the Plaintiffs in the said suit are bound to succeed as the Defendant No.1-Dattusingh failed to establish in his suit that either the Will dated 26th April, 1966 has been revoked or a subsequent Will has been executed in May, 1971 in his favour.

11. Shri. Joshi, the learned Advocate appearing for some of the Respondents in Civil Suit No.70 of 1988 pointed out that the Defendant-Dattusingh had engaged the same Advocate in both the suits and the said Advocate filed pursis of no instruction in both the suits. He pointed out that so far as the suit filed by Dattusingh is concerned, he engaged services of another Advocate and therefore, it was obvious that the Defendant No.1 was very much aware that the Advocate appointed by him had filed no instruction pursis in both the suits.

12. I have carefully considered the rival submissions. A perusal of the record of Reg.Civil Suit No.586 of 1976 shows that an order was passed by the trial Court below application at Exh.27 on 10th June, 1980 by invoking section 10 of the said Code staying the hearing of the said suit till the decision of the Reg.Civil Suit No.555 of 1976. It appears from the record that on 3rd January, 1984, the learned trial Judge passed further orders on the basis of the pursis at Exh.41. Pursis at Exh.41 dated 3rd January, 1984 was filed by the Advocate appearing for Defendant No.1-Dattusingh in which it is stated that Dattusingh had not given any instructions. The English translation of the relevant portion of the said pursis is as under :

"Today defendant has not come and has not given any information. Therefore, today suit cannot be conducted on behalf of the Defendant."

The learned trial Judge on the basis of the said pursis on the same day passed an order on the plaint at Exhibit 1. The learned trial Judge while referring to the said pursis observed that the Defendant was not contesting the suit. He therefore, directed the Plaintiffs to lead their evidence by affidavit. There is nothing on record to show that the order dated 10th June, 1980 passed under section 10 of the Code was set aside or recalled. The pursis of no instruction was filed by the Advocate on 3rd January, 1984. The order passed by the learned trial Judge on the said pursis is "file". However, the learned Judge passed an order on the same day on the plaint at Exh.1 which read thus :

"Read pursis at Exh.41 dated 3rd January, 1984. Read written statement of the Defendant No.3 Exh.18 dated 6th October, 1977. Now no Defendant is contesting the suit. The Plaintiff to lead evidence by affidavit. Defendant No.1 absent."

A further order was passed by the trial Court on 10th January, 1984 on Exh.1 which reads thus :

"Defendant No.1 absent. Exh.41 is pursis passed by Shri. B. V. Thokade Advocate appearing for him and he retired."

It is thus very clear that the order of stay under section 10 of the said Code passed on 10th June, 1980 below application at Exh.27 was neither set aside nor recalled by the learned Judge. Only because a pursis of "no instruction" was filed by the Advocate and the Defendant No.1-Dattusingh was absent on that particular date, the learned Judge recorded that the Defendant is not contesting the suit. The learned Judge carried an impression that by virtue of filling of a pursis of no instruction, Shri. Thokade, Advocate was discharged. It is also necessary to refer to the Roznama of the proceedings. On several dates fixed in the suit after the suit was stayed, it is recorded in the Roznama that the suit was stayed and stay is not vacated. As the suit was stayed for a period of three years, on various dates fixed appearance of the Advocates for the parties is not shown in the Roznama and it is also not noted in the Roznama whether the Advocates and the parties were present. Therefore, it is not a case where the Plaintiffs and/or their Advocate were always present and the Defendant No.1-Dattusingh or his Advocate were not present. On 3rd January, 1984 a pursis of no instruction was filed and on the same day the learned trial Judge wrongly observed that the Defendant No.1 was not defending the suit. The Defendant No.1 Dattusingh had filed his written statement on 13th February, 1978. If there was an order passed under section10 of the said Code staying the suit, and if the said order was in force, the learned Judge could not have directed the Plaintiffs to file affidavits and to lead evidence in the absence of the Defendant No.1. It is also an admitted position that Suit No.586 and Suit No.555 were pending in different Courts. A perusal of the record of Suit No.555 and in particular Roznama of the proceedings shows that both the suits were kept on different dates. Therefore there was no justification for the learned trial Judge to pass an order on Exh.1 on 3rd January, 1984 permitting the Plaintiffs to lead evidence by affidavits. If the hearing of the suit was stayed and the stay was not vacated, the Defendant No.1-Dattusingh, was not under any obligation to remain present in Regular Civil Suit No.586 of 1976 as dates were fixed from time to time only to find out whether the order of stay was in operation or not.

13. There is one more aspect of the matter. In large number of cases I have noticed that in the Civil Courts Advocates are allowed to file what is known as "pursis of no instructions" and the Courts and the concerned Advocates proceed on the assumption that by filing "pursis of no instruction", the concerned Advocate gets a discharge. It is because of this impression that the learned trial Judge in his order dated 10th January, 1984 has recorded that the Advocate appearing for Defendant No.1-Dattusingh has retired. In this connection it is necessary to refer to the relevant provisions of law. Rule 4 of Order III of the said Code deals with the appointment of Advocates. Sub-Rules (1) and (2) of Rule 4 of Order III read as under :

"4. Appointment of pleader. - (1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorized by or under a power-of-attorney to make such appointment.

(2) Every such appointment shall be filed in Court and shall, for the purposes of sub-rule (1), be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client."

It is, therefore, clear that appointment of every Advocate remains in force until determined with the leave of the Court by a writing signed by the client or the Advocate as the case may be and filed in Court. Therefore, requirement of the said Code is that an appointment of an Advocate can be determined only with the leave of the Court. The only exception is that where the client or Advocate dies or the proceedings of the suit are terminated.

14. This Court has framed Rules under section 34 of the Advocates Act, 1961 (hereinafter referred to as "the said Act of 1961"). The said Rules are very relevant so far as the present controversy is concerned. From Rule 1(b), it is obvious that the said Rules are applicable to all the Courts which are subordinate to this Court. Rule 7 of the said Rules recognises the obligation of the Advocate to appear in the Court when the matter in which he is appearing is fixed for hearing. The said Rules lay down an elaborate procedure to be followed in case an Advocate desires to obtain a discharge. Sub-Rules (4) and (5) of Rule 8 reads thus :

"(4) When an Advocate who has filed a Vakalatnama for a party wishes to withdraw his appearance he shall serve a written notice of his intention to do so on his client at least seven days in advance of the case coming up for hearing before the Court. Leave of the court to withdraw appearance may also be applied for if the client has instructed the Advocate to that effect.

The Advocate shall file a note in writing requesting the Court for permission to withdraw appearance and shall also file along with the Note the letter of the client instructing him to withdraw his appearance or a copy of the intimation given to the client as above together with its written acknowledgement by the client. The court if it is satisfied that no inconvenience is likely to be caused to the Court or the client may permit the Advocate to withdraw his appearance and while permitting the Advocate to do so may also impose such terms and conditions as it may deem proper either in public interest or in the interest of the parties.

(5) A party who wishes to discharge the Advocate engaged by him may apply to the Court for an order of discharge by following a similar procedure and the Court if it is satisfied may pass order discharging the Advocate and while doing so impose such terms and conditions as it may deem proper."

When an Advocate who has filed his vakalatnama for a party wishes to withdraw his appearance, he is required to serve a written notice of his intention to do so to his client atleast 7 days in advance of the case coming up for hearing before the Court. After sending written notice, the Advocate is required to file a note in writing requesting the Court for permission to withdraw appearance and he is required to file along with the note a copy of the intimation in writing given by him to his client with its written acknowledgment by the client. In case the Advocate receives an intimation in writing from his client instructing him to withdraw his Vakalatnama, the Advocate has to file the said intimation in writing in the Court alongwith a note requesting the Court to grant leave. After filing such a note, in normal circumstances, the Court will have to grant leave to the Advocate to withdraw his vakalatnama. Before granting leave, the Court must be satisfied that no inconvenience is likely to be caused to the Court or the client. The Rule further provides that while permitting the Advocate to withdraw his appearance, the Court is empowered to impose such terms and conditions as it may feel fit and proper either in public interest or in the interest of the parties.

15. Thus in view of the provisions of the Code and the Rules framed by this Court under section 34 of the said Act of 1961, it is very clear that an Advocate does not get discharge by merely filing a "no instruction pursis". The condition precedent for grant of leave to withdraw appearance by an Advocate is that a written intimation of his intention to do so has to be served on the client atleast 7 days in advance. The requirement of giving intimation will not obviously apply when the client himself instructs in writing to the Advocate to withdraw his appearance. Therefore, the practice adopted by the Civil Courts of treating the act of filing a "no instruction pursis" by an Advocate as discharge of the Advocate has to be deprecated being in contravention of the express provisions of the said Code and the Rules framed by this Court in exercise of powers under section 34 of the said Act of 1961. Even if "no instruction pursis" is filed by an Advocate, he continues to act as an Advocate till his appointment is determined with the leave of the Court.

16. In the facts of the present case all that is stated in the pursis filed by the Advocate is that on the date on which the suit appeared before the Court the Defendant No.1 had not come to the Court and therefore, on that day the Advocate did not have instructions to proceed. It must be noted in fairness to the Advocate that he has not stated in the pursis that he was desirous of obtaining discharge. The pursis has been filed by the Advocate very cautiously by mentioning that on that day his client had not come to the Court and therefore, on that day he was not in position to conduct the case on behalf of his client. It appears that the trial Court proceeded on the erroneous assumption that the filing of the said pursis will operate as discharge of the Advocate and therefore, an observation has been made in order dated 10th January 1984 that the Advocate has retired. It is thus clear that the approach of the learned trial Judge in proceeding with the hearing of Reg.Civil Suit No.586 of 1976 was wholly erroneous and contrary to the express provisions of section 10 of the said Code.

17. At this stage it is to be noted that the learned Addl. District Judge after considering the facts and circumstances of the case has observed that in normal course order of remand ought to have been passed. However, he noted that in view of the peculiar circumstances of the case, order of remand was not warranted as no useful purpose will be served by passing such an order. Shri. Sali, the learned Advocate appearing for the Plaintiffs in Reg.Civil Suit No.586 of 1976 has made submission on the basis of the said observation made by the learned Addl. District Judge. It is therefore necessary to refer to the factual controversy in both the suits.

18. It is the case of Defendant No.1-Dattusingh that on 27th August, 1962 the deceased Sundarabai executed a registered Will in which the bequest was made in his favour. In the written statement filed in Suit No.586 of 1976 the Defendant No.1-Dattusingh has admitted that another registered will dated 26th April, 1966 was executed by the deceased Sundarabai by which bequest was made in favour of the Plaintiffs in the said suit. In the deposition of the said Dattusingh recorded in Suit No.555 of 1976 he has admitted that Sundarabai executed a registered Will dated 26th April, 1966 under which the bequest was made in respect of the suit property in favour of the Plaintiffs in Suit No.586 of 1976. However, in both the suits, the said Dattusingh has come out with the case that in May, 1971, the deceased Sundarabai has executed a third Will by revoking the earlier Will of 26th April, 1966 and by the said third Will the suit properties were bequeathed to him. In the written statement filed by Dattusingh in Suit No.586 of 1976 the execution and registration of the Will dated 26th April, 1966 is specifically admitted and a specific case is made out that by the subsequent Will executed by Sundarabai in May, 1971 the Will dated 26th April, 1966 has been revoked. Suit No.586 of 1976 is based only on the Will dated 26th April 1966. The main question in the said suit is whether Will dated 26th April, 1966 was executed by Sundarabai and the suit properties were bequeathed by Sundarabai under that Will in favour of the Plaintiffs i.e. the Public Trust. The suit filed by Dattusingh i.e. RCS No.555 of 1976 is based only on the Will allegedly executed by Sundarabai in May, 1971. As execution of the Will dated 26th April, 1966 is admitted by Dattusingh, he will succeed only if he proves that by subsequent Will allegedly executed by Sundarabai in May, 1971, the earlier Will was revoked. Unless Defendant No.1-Dattusingh proves that the Will dated 26th April, 1966 stands revoked, the claim of the Plaintiffs in Suit No.586 of 1976 will have to be accepted and the property must go to the Trust as per the bequest made in the said Will.

19. Regular Civil Suit No.586 of 1976 was stayed as the earlier suit filed by Dattusingh being Reg.Civil Suit No.555 of 1976 was pending. Section 10 of the said Code is obviously a rule of convenience which is incorporated for preventing the multiplicity of proceedings. Once Reg.Civil Suit No.555 of 1976, which is earlier in point of time, was decided, there was hardly anything to be decided in Reg.Civil Suit No.586 of 1976 and the same was required to be decided in accordance with the decision in Suit No.555 of 1976.

20. It is pertinent to note that in the Written Statement filed by Dattusingh in Reg.Civil Suit No.586 of 1976, a specific case is made out that the Will dated 26th April, 1976 was revoked by the subsequent Will executed by Sundarabai in May, 1971. It is not at all the case of Dattusingh in his Written Statement in Suit No.586 of 1976 or in the plaint in Suit No.555 of 1976 that the Will dated 26th April, 1966 was revoked by Sundarabai by executing a separate instrument. It appears that for the first time at the time of hearing of Suit No.555 of 1976 Dattusingh came out with a case that on 3rd September, 1971 Sundarabai executed a letter in the name of the Sub-Registrar, Barshi, by which she purported to revoke the Will dated 26th April, 1966. He stated in his deposition that the said document was found below the pillow of deceased Sundarabai. A case is made out that the said document was duly attested by two witnesses. His case in his deposition is that the Will executed in May, 1971 was also found under the pillow of Sundarabai. An attempt was made by Dattusingh to prove the letter dated 3rd September, 1971 allegedly sent by Sundarabai to the Sub-Registrar by examining the attesting witness. However, the alleged Will executed in May, 1971 was not proved. Both the Courts discarded the alleged document of revocation of the Will which was purported to be executed on 3rd September, 1971. The Courts below held that Dattusingh failed to prove execution of the Will allegedly executed in May, 1971.

21. Both the Courts below have considered the oral and documentary evidence on record and have rejected the case made out by Dattusingh on the basis of the document allegedly executed on 3rd September, 1971. Firstly the existence of any such document was not pleaded by Dattusingh either in the Written Statement filed in Suit No.586 of 1976 or in the plaint is Suit No.555 of 1976. Secondly in reply to the notice dated 14th June, 1972 issued by the Plaintiffs in Suit No.586 of 1976 Dattusingh did not plead existence of any such letter dated 3rd September, 1971. Thirdly, if plaint in Suit No.555 of 1976 and written statement in Suit No.586 of 1976 are perused, it is very clear that no case is made out that the document of revocation of the Will executed on 26th April, 1966 was found below the pillow of the deceased Sundarabai. Therefore, the Appellate Court has disbelieved the evidence of the attesting witness to the so called document of revocation. Fourthly the letter allegedly written by Sundarabai was addressed to the Sub-Registrar and it was not proved that it was in fact delivered to the Sub-Registrar. Fifthly, it is found that after demise of Sundarabai, panchanama was made of various articles found in her house. Contents of the said panchanama are admitted by Dattusingh in his deposition. The panchanama gives an elaborate list of various documents and articles found in the custody of Sundarabai and surprisingly there is no reference to the writing allegedly executed by Sundarabai on which Dattusingh is relying upon. Considering all the aforesaid circumstances, the Courts below have discarded the case made out by Dattusingh that the Will dated 26th April, 1966 made in favour of the Plaintiff in Suit No.586 of 1976 has been revoked. Dattusingh could not prove execution of the alleged third Will by Sundarabai in May, 1971. Suit No.555 of 1976 filed by Dattusingh was based only on one contention that by virtue of the alleged Will executed by Sundarabai in May, 1971, the earlier Will dated 26th April, 1966 was revoked. Once revocation of the said Will was not proved and execution of the alleged Will executed in May, 1971 was not proved, the Courts below were absolutely right in dismissing Regular Civil Suit No.555 of 1976 filed by Dattusingh.

22. Once it is held that there was no substance in Reg.Civil Suit No.555 of 1976 filed by Dattusingh as he failed to prove revocation of the earlier Will of 26th April, 1966, the said Dattusingh will not be entitled to any right, title and interest in the suit property, as the bequest in respect of the suit property was made in favour of the Plaintiffs Trust by Will dated 26th April, 1976 the execution of which was clearly admitted by the said Dattusingh.

23. If findings recorded in Reg.Civil Suit No.555 of 1976 deserve to be confirmed, there cannot be any different and inconsistent decision in Reg.Civil Suit No.586 of 1976. Dattusingh admitted execution of Will dated 26th April, 1966 in favour of the Trust. He failed to prove that the said Will have been revoked. He also failed to establish that the alleged third Will was executed by the deceased in his favour by Sundarabai. Therefore, his suit must fail. As a result a decree for possession must follow in Reg.Civil Suit No.586 of 1976 filed by the Trust. In this view of the matter when the learned Addl. District Judge came to the conclusion that remand of Suit No.586 of 1976 will be an exercise in futility, no fault can be found with the said approach. The suits were of the year 1976 which were decided in the year 1984. Therefore, merely because there is some illegality while deciding Suit No.586 of 1976, an empty formality of passing an order of remand cannot be resorted to, as the same will have the result of only starting another round of litigation and will result in unnecessary expenditure for the litigants. In the circumstances, request made for remanding Suit No.586 of 1976 cannot be acceded to.

24. There is no merit in both the Second Appeals and the same are dismissed with no order as to costs.

25. At this stage Shri.Deshpande learned Counsel appearing for the Appellant made a prayer that the interim relief granted in the Second Appeals be continued for a period of 10 weeks. The said request is opposed by Shri.Sali. Considering the fact that the interim relief was granted by this Court, the same is ordered to be continued for a period of eight weeks from today.

26. Certified copy expedited.

Appeal dismissed.