SCA/5500/2008 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5500 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ========================================================= ASHITKUMAR MAYURBHAI PATEL & 2 - Petitioner(s) Versus SONALBEN MAHESHBHAI PATEL & 1 - Respondent(s) ========================================================= Appearance : MR DC DAVE for Petitioner(s) : 1 - 3. RULE SERVED for Respondent(s) : 1, MR AJ PATEL for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 13/10/2008 ORAL JUDGMENT 1. Rule. Shri A.J. Patel, learned advocate waives service of notice of rule on behalf of the respondent. With the consent of the learned advocates appearing for the respective parties, the matter is taken up for final hearing today. SCA/5500/2008 2/13 JUDGMENT 2. By way of this petition under Article 227 of the Constitution of India, the petitioners original defendants have prayed for an appropriate writ, direction and/ or order quashing and setting aside the impugned order passed by the learned Principal Senior Civil Judge, Anand dated 1.12.2007 below Exh.49 in Special Civil Suit No. 95 of 2003, by which the learned trail Court has allowed the said application submitted by the plaintiffs and has passed an order to re-cast the issues by deleting issue No.1 and adding issue No.3. 3. Respondent herein original plaintiffs had instituted the Special Civil Suit No. 95 of 2003 in the Court of learned Civil Judge (S.D.), Anand for declaration and permanent injunction to the effect that the suit properties exclusively belong to their deceased father Maheshbhai and the said Maheshbhai had not executed any testamentary document in his lifetime bequeathing the suit property in favour of the petitioners original defendants and, therefore, the petitioners would not derive any right, title or interest in respect of the suit properties on the strength of the concerned Will of the deceased father of the plaintiffs, which, according to the plaintiffs, is concocted piece of document at the instance of the defendants and their deceased father and hence, as a SCA/5500/2008 3/13 JUDGMENT consequence thereto, the defendants are required to be directed to hand over the vacant and physical possession of the suit property of the plaintiffs and thereupon, the defendants are required to be injuncted from claiming any right, title or interest in respect of the suit properties on the strength of the said Will and even otherwise. That the petitioners-defendants have filed the written statement specifically and categorically denying the assertion sought to be made by the plaintiff qua the genuineness and validity of the concerned Will and maintaining that the said Will was duly acted upon subsequent to the demise of the father of the plaintiffs. That the learned Principal Senior Civil Judge, Anand framed the issue vide Exh. 46 in the said suit. One of the issue framed by the learned trial Court was whether the plaintiffs prove that deceased Maheshbhai father of the plaintiffs had never executed any Will and on the basis of so-called Will the defendant Mathurbhai did not have any right title and / or interest in the property. That subsequently, on the basis of assertion by the defendants in the written statement that they have derived and the title or interest on the basis of the said Will executed by the deceased Maheshbhai and the original plaintiffs were of the opinion that issue No.1 would be in the form of negative, the plaintiffs submitted the SCA/5500/2008 4/13 JUDGMENT application at Exh. 49 to re-cast the issue framed at Exh. 46 and to delete issue No.1, which cast burden upon the plaintiffs to prove that the deceased Maheshbhai father of the plaintiffs had not executed any Will and to frame the issue that whether the defendants prove that they have become the owners of the property on the basis of the Will. The learned trial Court allowed the application Exh. 49 by passing the order to delete the issue No.1 and to add issue No. 3 “whether the defendants prove that they have become the legal owners of the disputed suit property on the basis of the Will". Being aggrieved and dissatisfied with the impugned order passed by the learned Principal Civil Judge (S.D.), Anand dated 1.12.2007 below Exh. 49 in Special Civil Suit No. 95 of 2003 in re-framing the issue No. 3, the petitioners original defendants have preferred the present Special Civil Application under Article 227 of the Constitution of India. 4. Shri D.C. Dave, learned advocate appearing for the petitioners has vehemently submitted that the impugned order passed by the learned trial Court in re-casting the issue and adding / framing issue No.3, by which burden is cast upon the defendants to prove that they have become the owners of the suit properties on the basis of the Will is absolutely illegal and against SCA/5500/2008 5/13 JUDGMENT the provision of statue and against the Evidence Act. It is submitted that when it is the case of the plaintiffs in the plaint that the deceased father has not executed any testamentary document in his lifetime and, therefore, when the plaintiffs sought declaration and permanent injunction on the aforesaid case, it is for the plaintiffs to prove their case and, therefore, initial burden would be upon the plaintiff to prove their case. It is submitted by Shri Dave, learned advocate for the petitioners that as such existence of the Will is not disputed. It is submitted that even otherwise, considering the averments in the plaint plaintiffs has to first enter the box and prove that Will is not existence and / or the Will is concocted and thereafter only the burden would shift upon the defendants to prove that Will was in existence and is not concocted one. Therefore, it is submitted by Shri Dave, learned advocate for the petitioners that while passing the impugned order learned trial Court has wrongly shifted the burden upon the defendants to prove that they have become the owners on the basis of the Will. 5. Shri Dave has heavily relied upon Sections 101 and 102 of the Indian Evidence Act and it is submitted that as per Section 101 of the Evidence Act, initial burden is upon the plaintiffs to prove that Will is concocted one. SCA/5500/2008 6/13 JUDGMENT Relying upon Section 102 of the Evidence Act, it is submitted that as the plaintiffs have sought the possession, it is for the plaintiffs to prove and lead the evidence. 6. Shri Dave, learned advocate for the petitioner has heavily relied upon the decision of the Hon’ble Supreme Court in the case of Surendra Pal And Others Vs. Dr. (Mrs. Saraswati Arora And Another reported in (1974) 2 SCC, 600 as well as another decision of the Hon’ble Supreme Court in the case of Meenakshiammal (Dead) Through LRS. And Others Vs. Chandrasekaran And Another reported in (2005) 1 SCC, 280. Relying upon the aforesaid decision and making above submission, it is requested to allow the present Special Civil Application by quashing and setting aside the impugned order passed by the learned trial Court. 7. Petition is opposed by Shri A.J. Patel, learned advocate for the respondents herein original plaintiffs. It is submitted that the mode of succession is obstructed by the defendants on the basis of the Will, which is concocted one and which was never executed by the deceased Maheshbhai father of the plaintiffs. It is submitted that respondent original plaintiffs sisters are excluded and brother is alleging that by Will only he has been given the right. SCA/5500/2008 7/13 JUDGMENT It is submitted that a person who propounded Will has to prove the Will and there cannot be negative proof. It is submitted that therefore, when defendants are asserting their right on the basis of the Will and they claim that they are absolute owner on the basis Will then it is for them to prove that they have become the owners of the suit land on the basis of the Will and, therefore, the learned trial Court has rightly framed the issue by which burden is cast upon the defendants to prove that they have become the absolute owner of the suit property on the basis of the Will. It is submitted that when the Will itself is disputed, there cannot be negative proof that the plaintiffs have to prove that the Will is not in existence. Shri A.J. Patel, learned advocate for the respondents has relied upon the decisions of the Hon'ble Supreme Court in the case of Rani Purnima Debi and another Vs. Kumar Khagendra Narayan Deb and another reported in AIR 1962 SC, 567 another decisions of AIR 2005(1) SC, 280 (para 16) and the decision of the Kerala High Court in the case of Vattakam Purath Parambil Ananda Bhai and another Vs. Kanaka Bhai and Others reported in AIR 1995 Kerala, 201, making above submissions and relying upon the aforesaid decisions, it is requested to dismiss the present Special Civil Application. SCA/5500/2008 8/13 JUDGMENT 8. Heard the learned advocates for the respective parties. Present Special Civil Application is filed by the petitioners original defendants challenging the order passed by the learned trial Court below Exh. 49 in re-casting the issue and framing the issue No. 3 by which the burden is cast upon the petitioners-defendants to prove that “whether they have become the owner of the dispute property by Will?” It is the contention on behalf of the petitioners- defendants that when it was the specific case on behalf of the plaintiffs that the suit property exclusively belong to their deceased father Maheshbhai and the said Maheshbhai had not executed any testamentary document in his lifetime bequeathing the suit property in the favour of the petitioners-defendants therefore, the burden is upon the plaintiffs to prove their case by leading proper evidence. Therefore, it is submitted that learned trial Court has materially erred in re-casting the issue and framing issue No. 3 calling upon the defendants to prove that they have become the owners of the disputed property on the basis of the Will. Learned advocate for the petitioners has heavily relied upon Sections 101 and 102 of the Indian Evidence Act. It is required to be noted and it appears that initially the plaintiffs had sought declaration and permanent injunction to the effect that the suit properties exclusively SCA/5500/2008 9/13 JUDGMENT belong to their deceased father Maheshbhai and the said Maheshbhai had not executed any testamentary document in his lifetime bequeathing the suit property in favour of the petitioners-defendants and, therefore, the petitioners-defendants would not derive any right title or interest in respect of the suit property. However, in the written statement the petitioners-defendants has specifically come out with a case that the deceased Maheshbhai had executed a Will in their favour and had bequeathed all the properties and, therefore, they have become the absolute owners of the suit property. In view of the above, when the defendants are asserting that deceased Mahesbhai had executed the Will and on the basis of the said Will they have become the absolute owner of the property in question, the burden is cast upon them to prove the said factum of execution of the Will by the deceased Maheshbhai and fact that they have become the absolute owner of the said property. Plaintiffs cannot be directed to prove the negative that the deceased Maheshbhai had not executed the Will. It is a cardinal principle of evidence law that a person who alleges something has to prove himself and a negative is not required to be proved by other side. Therefore, it appears that the learned trial Court has not committed any error in framing the issue calling upon the defendants SCA/5500/2008 10/13 JUDGMENT to prove the existence of the Will and /or that they have become the owners by Will executed by the deceased Maheshbhai. 9. It is the contention of behalf of the petitioners-defendants that they have not disputed the existence of the Will and if the plaintiffs are submitting that Will is not in existence and / or concocted one, in that case, plaintiff has to first enter into box and prove that Will is not in existence and/or is concocted one and thereafter the burden will shift upon the defendants to prove that the Will is not concocted one and on making above submission the learned advocate for the petitioners-defendants have heavily relied upon Sections 101 and 102 of the Evidence Act. It is the contention on behalf of the plaintiffs that as per Section 101 of the Evidence Act burden is upon the plaintiffs to prove that the Will is concocted one. The aforesaid submission seems to be attractive but on facts has no substance. In para 25 of the plaint the plaintiffs have specifically disputed the existence of the Will. Therefore, the existence of the Will itself is disputed one and the defendants are asserting that Will was executed by deceased Maheshbhai and that they have become the owner of the disputed property on the basis of the Will, thereafter it will be upon the defendants to SCA/5500/2008 11/13 JUDGMENT prove the existence of the Will. Even as per Section 101 of the Evidence Act whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist, the burden of proof lies on that person. Under the circumstances, when the defendants desire the Court to give judgment that as to his legal right on the basis of the Will executed by deceased Maheshbhai, in that case, the said fact of existence of the Will and that the deceased Maheshbhai had in fact executed the Will is required to be proved by the defendants who is asserting the said fact. As stated hereiabove, plaintiffs cannot be directed to prove negative that the deceased Maheshbhai had not executed the Will. 10.So far as the reliance place upon Section 102 of the Evidence Act and Illustration thereto submitting that as the plaintiffs has sought the possession it is for the plaintiffs to prove and lead evidence is concerned it is required to be noted that even Illustration A to Section 102 would be helpful to the plaintiffs rather than defendants. As per Illustration A if A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C,B's father if no evidence were given on either side, B would be entitled to retain his possession SCA/5500/2008 12/13 JUDGMENT and, therefore, the burden of proof is on A. In the present case, defendants assert that they are in possession of the suit property by Will of the deceased Maheshbhai and, therefore, they would have to lead evidence and the burden of proof would lie upon the defendants and, therefore, if the defendants fail to prove the existence of the Will executed by the deceased Maheshbhai, in that case, they would not be entitled to retain their possession. Therefore, even considering Section 102 and the Illustration A the burden of proof would be upon the defendants. Under the circumstances, it cannot be said that the learned trial Court has committed an error in re-framing /recasting the issue by which the burden is cast upon the defendants to prove that they have become the absolute owner of the property in question by Will executed by the deceased Maheshbhai. 11.Now, so far as the reliance place upon the decisions of the Hon'ble Supreme Court in the case of Surendra Pal And Others (Supra) and Meenakshiammal (Dead) Through LRS. And Others (Supra) are concerned the same are not applicable to the facts of the present case. In the aforesaid decisions before the Hon'ble Supreme Court the existence of the Will was not in dispute but it was challenged on the ground that it is obtained by fraud and on other ground SCA/5500/2008 13/13 JUDGMENT and, therefore, in the facts of those cases, the Hon'ble Supreme Court has held that the burden is upon the plaintiffs to prove that the Will is not obtained by fraud and / or on the ground alleged. In the present case the existence of the Will itself is disputed and the defendants are asserting that the Will was executed by the deceased Maheshbhai and they have become the absolute owner of the said Will and, therefore, the burden to prove the said Will would be certainly upon the defendants. Under the circumstances, aforesaid decisions would not be helpful to the petitioners. 12.In view of the above, it cannot be said that learned trial Court has not committed any error in passing the order below Exh. 49 and recasting the issue No. 3 as stated hereinabove, which calls for interference of this Court in exercise of the powers under Article 227 of the Constitution of India. 13.For the reasons stated above, petition fails which deserves to be dismissed and is accordingly dismissed. Rule discharged. There shall be no order as to cost. (M.R.SHAH,J.) kaushik