*1* 51.wpst.4100.11 skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION (STAMP) NO. 4100 OF 2011 Vasant Shankar Magadum & Ors. ..Petitioners -Versus- Pandurang Ananda Warang & Ors. ..Respondents .......... Mr.Chetan G. Patil for the Petitioners. Mr.Amogh Karandikar i/by M.J.Patil for Respondent Nos. 1 & 2. .......... CORAM : B.R. GAVAI, J. DATE : 21ST FEBRUARY, 2011. P.C. 1 Rule. Rule made absolute forthwith. Heard by consent. 2 By way of the present petition, the petitioners challenges the order dated 21st December 2010 vide which the learned trial Judge has framed an issue thereby casting a burden on the petitioners/defendants to prove that the will deed dated 9th November 2005 was executed in favour of the defendants by deceased Rayanbai and to prove that the said will deed is legal. 3 The respondents/plaintiffs have filed a suit claiming that the suit *2* 51.wpst.4100.11 property was initially owned by one Shripati Pandu Warang and that after the death of said Shripati, the property was owned by the deceased Rayanbai. The plaintiffs claiming to be close relatives of the deceased Rayanbai, contending that after the death of Rayanbai, they became the owners of the suit property filed the suit. It is their contention that defendants claiming that the deceased Rayanbai had executed a will deed dated 9th November 2005, have got entered their names in the revenue records and forcibly taken possession of the suit property. It is also their contention that prior to her death, the deceased Rayanbai was unconscious for 3 to 4 days and as such, the will-deed was not genuine and legal. 4 The suit is resisted by the present petitioners. The will-deed in question was executed by the deceased Rayanbai. In view of this rival pleadings, issue No.3 came to be framed as under : ß03- fn-19-05-2007 jksthps jk;ukckbZaps e`R;qi= cukoV vlY;kps oknh fl/n djrkr dk \Þ (03. Whether the plaintiffs prove that the will deed dated 19th May 2007 of deceased Rayanabai is bogus ?”) 5 Subsequently, an application came to be filed by the present plaintiffs praying to frame the issue of putting the burden on the defendants, regarding execution of the will. As aforesaid, the said *3* 51.wpst.4100.11 application is allowed. Hence the present petition. 6 The perusal of the pleadings would clearly reveal that it is the plaintiffs who have come with a specific case that a will-deed dated 9th November 2005 is not validly executed is and sham and bogus. In that view of the matter, the burden would lie upon the plaintiffs to prove that the said will-deed is not legal and valid. The learned trial Judge has, therefore, rightly framed the issue No.3 below Exh.24. 7 I am of the considered view that the learned trial Judge has erred in framing the additional issue of putting burden on the defendants, where as a matter of fact, the burden ought is on the plaintiffs to establish what they have specifically averred in their plaint. 8 In that view of the matter, the impugned order dated 21st December 2010 is not sustainable in law. 9 Rule is made absolute in terms of prayer clause (b). [ B.R. GAVAI, J. ]