Jai Bhagwan vs Jai Karan And Others on 28 July, 2009

C.R.No.1041 of 2008


      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                      CHANDIGARH


                                         C.R. No.1041 of 2008.
                                         Decided on July 28, 2009.

Jai Bhagwan.

                                                           .. Petitioner

                   VERSUS


Jai Karan and others.

                                                         Respondents

                                         ***

CORAM:             HON'BLE MR.JUSTICE M.M.S.BEDI


PRESENT            Kr.Satbir Singh, Advocate,
                   for the petitioner.

                   Mr.Surender Saini, Advocate,
                   for the respondens.


M.M.S. BEDI, J. (ORAL)

Plaintiff Jai Bhagwan has filed a suit for declaration

and injunction that after the death of his father Puran Singh, the

property left by him would be owned by all his heirs whereas the

validity of a Will dated 11.12.1997, in favour of defendant-respondent

No.1, has also been challenged which has resulted in the framing of

following two issues: –

1) Whether the Will dated 11.12.1997, in favour of
defendant No.1 is null and void and having no effect on

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C.R.No.1041 of 2008

the rights of natural heirs of Pooran?OPP.

2) Whether the suit property devolves on the
plaintiff and defendants No.2 to 6 according to natural
Succession?OPP.

Vide impugned order, an application filed by the

plaintiff-petitioner to lead rebuttal evidence after the closing of

evidence in affirmative and the evidence of the defendants, has been

dismissed on the ground that the plaintiff has already availed several

opportunities to conclude his evidence and the oral evidence of the

plaintiff has been closed in affirmative and production of

documentary evidence of the plaintiff has also been closed by the

plaintiff. The trial Court formed an opinion that the defendant-

respondent No.1, has also stated that the alleged Will is not in his

possession and the burden of proof to establish the Will is on the

plaintiff and not on defendant no.1, as such, the plaintiff cannot be

permitted to adduce evidence in rebuttal.

Counsel for the petitioner has contended that the

defendants-respondents have got mutation entries made regarding

the inheritance of property of Pooran, on the basis of a Will dated

11.12.1997, alleged to have been executed in favour of defendant

No.1, jeopardizing the civil rights of the plaintiff-petitioner which

compelled him to file a suit for declaration and injunction for

establishing his legal rights in the property left by Pooran. A heavy

onus lay upon the defendant-respondent, in such circumstances, to

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C.R.No.1041 of 2008

establish his rights on the basis of the Will dated 11.12.1997. The

trial Court has not framed the issues properly and the onus to

establish the Will lies upon a person who propounds the Will in his

favour. The rights of defendants-respondents have been claimed by

defendant-respondent no.1, on the basis of the alleged Will. Though

he has not led any evidence to prove the Will, but the right of the

plaintiff cannot be prejudiced to establish the illegality of the Will

dated 11.12.1997.

I have heard counsel for the petitioner as well as

counsel for the respondents.

Seen technically, the petitioner-plaintiff cannot be

permitted to lead rebuttal evidence as the onus of issue No.1

mentioned hereinabove has been put on the plaintiff but examining

minutely and taking into consideration the rights of the plaintiff and

defendants, it appears that the plaintiff seeks right in the property on

the basis of natural succession whereas the defendant-respondent

No.1, wants to defeat the rights of the plaintiff on the basis of the Will

dated 11.12.1997, alleged to have been executed in his favour by

Pooran. As per Section 102 of the Evidence Act, the burden of proof

in a suit lies on that person who would fail if no evidence at all were

given on either side.

In the present case, if the defendants failed to

produce any evidence regarding the Will dated 11.12.1997, their

claim on the basis of the Will dated 11.12.1997, would fail and it

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might result in the success of the claim of the plaintiff-petitioner. The

onus placed upon the plaintiff regarding issue No.1 is not the sole

determining factor to find out whether the plaintiff can be permitted to

produce the rebuttal evidence. The initial onus to establish the Will is

on the defendants. In case sufficient evidence would have been

produced regarding the Will, the plaintiff himself have got an

opportunity to rebut the evidence produced. Prima facie, it is

apparent, that the trial Court has not fixed onus upon the defendants

to prove the Will which has resulted in the impugned order. The

impugned order dated 31.10.2007, declining the plaintiff an

opportunity to produce the evidence to rebut the Will is hereby set

aside and it is ordered that the plaintiff will be given one opportunity

to produce evidence to rebut the Will dated 11.12.1997, subject to

payment of costs of Rs.1000/- to the defendants.

Parties are directed to appear before the Trial

Court on the next date of hearing fixed before it. It is made clear that

in case the plaintiff fails to produce the evidence on the next date of

hearing or any date fixed by the trial Court, this petition will be

deemed to have been dismissed and he will not be entitled to lead

any other evidence.

Disposed of.

(M.M.S.BEDI)
JUDGE
July 28, 2009.

rka

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