JUDGMENT - B.N. SRIKRISHNA, J.:---These two appeals arise out of the judgment and order of the learned Single Judge dated March 1/2, 1996 made commonly in the two suits i.e. Testamentary Suit No. 36/1984 and Testamentary Suit No. 21/1992. 2.After having heard the Counsel appearing on both sides quite extensively, we are satisfied that the judgment and order of the learned Single Judge appealed against would have to be set aside and the two suits sent back and the parties be given opportunity of leading further evidence for the reasons which we shall indicate hereinafter. Facts: 3.Mrs. Chandrabhaga Chandrarao Sawant filed Testamentary Petition No. 449 of 1984 seeking letters of administration in respect of the Will of deceased Chandrarao Suryaji Sawant dated 11th February, 1966. Upon the Caveators objecting to it, this Testamentary Petition No. 449/1984 was converted into Testamentary Suit No. 36/1984. Simultaneously, Gajanan Chandrarao Sawant filed a Testamentary petition Propounding the Will of the deceased Chandrarao Suryaji Sawant. Upon this Testamentary petition being objected to, it was converted into the Testamentary Suit No. 21/1992. As both these suits raised common issues, the learned Single Judge framed the following issues which would determine both the suits. The commonly framed issues are as follows :--- A. Whether the writing dated 5-8-1974 is genuine and duly executed last Will and Testament of the deceased ? B. Whether the deceased was of sound condition of mind at the time of execution of the said writing dated 5-8-1974? C. Whether the writing dated 5-8-1974 is natural Will? D. What is the effect of the Will of late Chandrarao Suryaji Sawant dated 11-2-1966 as mentioned in para 4 of the affidavit of Gajanan Chandrarao Sawant caveator dated 19-11-1984? E. What order? 4.The evidence of some of the witnesses was recorded on commission. While the witnesses were being examined on commission at Sateli, District Sindhudurg, the original Will propounded by Gajanan Chandrarao Sawant remained in the safe custody of the Prothonotary and Senior Master of this Court. The parties appear to have proceeded with the recording of evidence before the Commissioner on the basis of a xerox copy of the Will. The xerox copy of the Will was produced and taken on record and marked as Exhibit 'C'. The parties appear to have proceeded with the recording of evidence before the Commissioner on the basis of a xerox copy of the Will. The xerox copy of the Will was produced and taken on record and marked as Exhibit 'C'. During trial, after the plaintiffs in Suit No. 36/1984 had closed the evidence, it was noticed that the original Will had not even been taken on record as an exhibit. Chamber Summons No. 577/1995 was taken out by Mrs. Chandrabhaga Chandrarao Sawant in which a specific prayer (b) was made that the original copy of the Will which had been deposited in the custody of the Prothonotary and Senior Master of this Court as per Rule 375 of the High Court Original Side Rules and which forms a part of the proceedings be exhibited in the proceedings. By an order made on August 2, 1995 the learned Single Judge disposed of prayer (b) in the said Chamber Summons by saying that the said document had already been exhibited and hence nothing survived in the said prayer, perhaps referring to the earlier order dated 5-7-1995. On 5-7-1995 the Court had made the following order : "At this stage, the original Will is admitted and marked Exhibit 'Q' without the defendants admitting execution, genuineness, contents and the signature. The original P-A returned to defendant No. 4 and xerox copies are to be filed. Defendant No. 4 undertakes to produce original P-A when required. Date of draft Chamber Summons extended till 12-7-1995." It is important to notice that by this order of 5th July, 1995 the Court had merely permitted the original Will to be marked as Exhibit 'Q' without the defendants admitting execution, genuineness, contents and the signature on the Will. In other words, the burden of proving of the aforesaid facts vis-a-vis the Exhibit 'Q' was on the persons who had propounded the Will. It is not in dispute that no specific evidence was laid to prove execution, genuineness, contents and signature on the document marked Exh. 'Q' on the record. For one reason or the other, the parties appear to have assumed that all the evidence that was recorded before the Commissioner with reference to the document marked at Exhibit 'C' would automatically apply to and be read as evidence in connection with Exhibit 'Q'. 'Q' on the record. For one reason or the other, the parties appear to have assumed that all the evidence that was recorded before the Commissioner with reference to the document marked at Exhibit 'C' would automatically apply to and be read as evidence in connection with Exhibit 'Q'. We are not called upon to decide as to whether such an assumption was justified or not. We notice a further development that, when the evidence was being recorded on June 28, 1995, during the cross-examination of Smita Gajanan Sawant, an objection was raised that the original Will could not be exhibited as the evidence of the plaintiffs witnesses had been taken on commission and, unless the said document was properly proved, it could not be exhibited. On this objection being raised, the learned Single Judge made an order "Hence, in view of the above the original Will is marked 'X' and is not exhibited; hence the original Will should be marked Exhibit 'X' and the Exhibit 'C' cancelled". 5.As a consequence of the order made on June 28, 1995 a curious situation arose. The document which was marked at Exh. C (xerox copy of the Will) during the evidence before the Commissioner came to be struck off from the record since its exhibit number was cancelled. Exhibit 'Q' (the original Will) remained on record subject to its execution, genuineness, contents and signature being proved in accordance with law. This was never done. 6.Mr. Tulzapurkar, learned Counsel for the appellant, strongly contends that there is no document on record proved in accordance with the provisions of the Evidence Act and the Indian Succession Act in respect of which Probate or Letters of Administration could be granted by the Court. Hence, according to him, the findings made by the learned Single Judge on all the four issues must fail without there being a document which is first identifiable on record and such document being proved in accordance with the provisions of the Evidence Act and the Indian Succession Act. The other issues as to whether the document is a genuine Will or whether the Testator had the requisite mental capacity to make the Will could not arise at all. We find substance in the contention raised by the learned Counsel. With the help of learned Counsel we too waded through the record to see if the situation could be salvaged. We find substance in the contention raised by the learned Counsel. With the help of learned Counsel we too waded through the record to see if the situation could be salvaged. We confess, our efforts were futile. The contention raised by Mr. Tulzapurkar seems to be fatal to the judgment under appeal. 7.Though Mr. Pai for the respondents initially attempted to persuade us to take a contrary view, at the end of the day he too had no answer to the fatal flaw pointed out by Mr. Tulzapurkar. In any other matter the situation could have been easily resolved by dismissing the suit itself. However, in our view, in a Testamentary Suit where the genuineness of the Will and the Probate granted in respect of the Will would act in rem, it would cause injustice to the parties if the suit is dismissed for omission or inadvertance on the part of the party propounding the Will to prove it. We are, therefore, of the view that, though the order of the learned Single Judge needs to be set aside, the two suits would have to be remanded to the trial Court for fresh trial in accordance with law. Since the learned Single Judge answered all the four issues by holding that the Will was proved, the learned Single Judge dismissed Testamentary Suit No. 21/1992. The companion appeal is against the dismissal of the said suit. 8.Consequently, we allow the Appeal No. 688/1996 and Appeal No. 723/1996 by setting aside the order and judgment of the learned Single Judge dated March 1/2, 1996, inter alia, disposing of Testamentary Suit No. 36/1984 and Testamentary Suit No. 21/1992. 9.Testamentary Suit Nos. 36/1984 and 21/1992 are restored and remanded to the learned Single Judge for trial and disposal in accordance with law. The learned Single Judge shall permit the parties to lead such further evidence as they would like to adduce in support of their respective cases and, after considering such additional evidence, as also the evidence already placed on record and, after hearing the parties, dispose of the suits afresh in accordance with law. 10.Since the suits had originated in the year 1984 and the plaintiff in Suit No. 36/1984 is said to be around 90 years of age, it is desirable that this suit is heard and disposed of within a period of six months from today. 10.Since the suits had originated in the year 1984 and the plaintiff in Suit No. 36/1984 is said to be around 90 years of age, it is desirable that this suit is heard and disposed of within a period of six months from today. Liberty to the parties to move the learned Single Judge taking suits to give fixed date of hearing. 11.Mr. Tulzapurkar straightway agrees that the evidence of Smt. Chandrabhaga Chandrarao Sawant, the plaintiff in Suit No. 36/1984 may be recorded on commission in view of her age. As far as other witnesses are concerned, the plaintiffs are at liberty to apply to the Court for examination on commission and the Court will make appropriate order in accordance with law. When such an application is made, the learned Single Judge shall keep in mind that the attesting witnesses are also of the age of about 70 years or more. 12.In view of the suits having been remanded for further trial, the undertaking recorded in the order of Parekh, J., dated 5-12-1985 shall revive and continue to operate till disposal of the two suits. 13.Issuance of certified copy is expedited. Parties to act on an ordinary copy of this order authenticated by the Associate. 14.No order as to costs. -----