1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.1340 OF 2009 IN SUIT NO. 1206 OF 2000 Tayebali Akberali Sohagpurwala .... Plaintiff. V/s Khuzema Mulla Akberali Lokhandwala & Ors. .... Defendants. ---- Mrs. Rita Bhatia for Plaintiff Mr. Jariwala with Ms. Ghag with Ms. P.A. Mhatre i/b Thakore Jariwala & Co. for defendant No.1. Ms. Mamta Sadh with Mr. Ashok Purohit i/b Zohair & Co. for defendant Nos. 2 and 3. ---- CORAM: V.M. KANADE, J. DATE : 9 th September, 2009 P.C.: 1. Heard the learned Counsel for plaintiffs and the learned Counsel for defendants. 2. This Chamber Summons has been taken out by plaintiffs for recasting issues which were framed by this Court by order dated 12/11/2008. It is submitted by the learned Counsel appearing on behalf of plaintiffs that issues have to be 2 recasted in the following manner:- Issue (d) which reads as (d) Whether the Plaintiff proves that the Declaration of Oral Gift dated 4 th July, 1994 executed between the deceased Mulla Akbarali Taherali Sohagpurwala and the Defenant No.1 is a false, fabricated and got-up document and hence is void? To be read as under: (d) Whether the Defendants prove that the Declaration of Oral Gift dated 4 th July, 1994 executed between the deceased Mulla Akbarali Taherali Sohagpurwala and the Defenant No.1 is a valid document? Issue (f) which reads as (f) Whether the plaintiff proves that Memorandum of Family Arrangement Cum Compromise dated 26 th October, 1999 executed by and between the deceased Mulla Akbarali Taherali 3 Sohagpurwala and the Defendant Nos. 1, 2 and 3 is a false, fabricated and got up document and hence is void? To be read as under: (f) Whether the Defendants prove that the Memorandum of Family Arrangement Cum Compromise dated 26 th October, 1999 executed by and between the deceased Mulla Akbarali Taherali Sohagpurwala and the Defendant Nos. 1, 2 and 3 is a valid document? Issue (g) which reads as (g) Whether the Plaintiff proves that the alleged documents in support of the alleged Memorandum of Family Arrangement Cum Compromise dated 26 th October, 1999 executed by and between the deceased Mulla Akbarali Taherali Sohagpurwala and the Defendant No.1, are false, fabricated and got up document and hence is void? To be read as under: (g) Whether the Defendants prove that the 4 alleged documents in support of the alleged Memorandum of Family Arrangement Cum Compromise dated 26 th October, 1999 executed by and between the deceased Mulla Akbarali Taherali Sohagpurwala and the Defendant No.1 are valid documents?” 3. It is submitted by the learned Counsel appearing on behalf of plaintiff that there are two oral gifts dated 4 th July 1994; one executed between deceased Mulla Akbarali Taherali and defendant No.1 and the other is executed between deceased Mulla Akbarali Taherali and Defendant No.1’s wife. It is, therefore, submitted that the issued be framed in the following terms:- Whether defendants prove that declaration of oral gift deed dated 4 th July 1994 executed between deceased Mulla Akbarali Taherali Sohagpurwala and Defendant No.1’s wife is a valid document? 5 He then submitted that so far as issue Nos. (f) and (g) are concerned, it is necessary to recast the said issues and the burden should be put on defendants to prove the Memorandum of Family Arrangement Cum Compromise dated 26 th October, 1999. 4. The learned Counsel appearing on behalf of defendants has invited my attention to the averments made in the plaint and the reliefs claimed by the plaintiff in the plaint. It is submitted that, according to plaintiff, this Memorandum of Family Arrangement Cum Compromise dated 26 th October, 1999 is not a valid document and is false, fabricated and got up document. He submitted that, therefore, since the specific averment has been made in the plaint, burden is on the plaintiff to prove that the said document is not a valid document and it is false, fabricated and got-up document. 5. There is much substance in the submission made by the learned Counsel appearing on behalf of defendants. It is a well settled position in law that whoever makes a specific allegation or averment in respect of validity of any document, the burden is on him to show that the said document is not a 6 valid document and is false, fabricated and got-up document. In my view, therefore, it is not necessary to recast issue Nos. (f) and (g) as prayed by plaintiff. It is, however, clarified that defendants are relying on this Family Arrangement Cum Compromise Deed and, as such, they will have to prove this document in accordance with law. 6. With these directions, Chamber Summons is partly allowed and disposed of. The additional affidavit in lieu of evidence is taken on record. (V.M. KANADE, J.)