Civil Revision No. 1711 of 2004 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Revision No. 1711 of 2004 Date of decision. 07.08.2009 Mohinder Kumar Bansal alias Mohinder Parkash Bansal son of Shri Raghbir Singh son of Jagan Nath, resident of Bazar Khazanchian, Hisar, Tehsil and District Hisar. ....... Petitioner Versus 1. Om Parkash son of Shri Niamat Singh, 2.Ashwani Kumar son of Om Parkash, residents of Aggarwal Colony, Hisar, Tehsil and District Hisar, and 3. Smt. Urmila Devi wife of Shri Rattan Lal, daughter of Shri Raghbir Singh, r/o Azad Gali, Hisar, Tehsil and District Hisar. ...... Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr.Jaswant Jain, Advocate for the petitioner. Mr. Hariom Attri, Advocate for respondent nos. 1 and 2. None for respondent no.3. **** Civil Revision No. 1711 of 2004 --2-- Sham Sunder, J. This revision-petition is directed against the order dated 06.03.2004, rendered by the Court of Civil Judge ( Junior Division ), Hisar, vide which it declined the application of the plaintiffs to re-cast issue no.2. 2. The plaintiffs filed a suit for declaration to the effect that they were the owners in possession of the residential house and the land, as fully detailed in the head note of the plaint, in equal shares. It was claimed by them that the Will dated 13.05.1980 allegedly executed by Smt. Krishana Devi, in favour of the defendants, was fake, frivolous, vexatious, forged and fabricated document based on fraud. It was further stated that the plaintiffs, as such, were entitled to be recorded as owners in possession of equal shares of the property, in dispute, in the revenue record. Civil Revision No. 1711 of 2004 --3-- 3. The defendants, put in appearance, and contested the suit, by way of filing joint written statement, wherein, it was stated by them that Krishna Devi executed a legal and valid Will dated 13.05.1980 in their favour. 4. On 16.02.2001 besides other issues, issue no.2, which reads as under, was struck by the trial Court:- “Whether the Will dated 13.05.1980 executed by Krishna Devi widow of Ram Parkash in favour of plaintiff, is false, based on fraud, mis-representation, against the principles of natural justice ?OPP.” 5. Since the onus of this issue was cast on the plaintiffs, they moved an application for re-casting the same, which was dismissed by the trial Court, vide the order impugned. 6. Feeling aggrieved, the instant revision petition, was filed by the petitioner. Civil Revision No. 1711 of 2004 --4-- 7. I have heard the Counsel for the parties, and have gone through the documents, on record, carefully. 8. The Counsel for the revision- petitioner, submitted that since the Will was set up by the defendants, it was for them to prove the execution, legality and validity thereof. He further submitted that, after proving the said execution, legality and validity of the Will, the onus lay upon the plaintiffs to prove, as to whether, it was a fraudulent document. He further submitted that the trial Court, thus, was wrong in striking issue no.2 in the aforesaid manner. He further submitted that the order impugned, being illegal, was liable to be set aside. 9. On the other hand, the Counsel for respondent nos. 1 and 2 submitted that since the plaintiffs claimed that the Will was a forged and fabricated document, it was for them to prove the same and the trial Court was Civil Revision No. 1711 of 2004 --5-- right in placing the onus to prove that issue in the manner, referred to above, on them. He also placed reliance on Daulat Ram and others v. Sodha and others, 2005 (Suppl.), Judicial Reports (Supreme Court) 582, in support of his contention. He further submitted that the order, being legal and valid and was liable to be upheld. 10. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the revision petition deserves to be partly accepted, for the reasons to be recorded hereinafter. Since the Will dated 13.05.1980 was set up by the defendants, it was for them to prove the execution, legality and validity thereof. Thus, the trial Court was required to place reliance with regard to the execution, validity and legality of the Will upon the defendants, who set up the same. At the same time, Civil Revision No. 1711 of 2004 --6-- the trial Court was required to strike another issue, to the effect, as to whether the Will was the result of fraud and mis-representation, the onus to prove whereof was required to be cast upon the plaintiffs. The trial Court, in my opinion, was, thus, wrong in rejecting the application of the plaintiffs. The trial Court is directed to frame the following issues, instead of issue no.2:- “1. Whether Krishna Devi executed a legal and valid Will dated 13.5.1980, in favour of the defendants ?OPD 2- Whether the Will dated 13.05.1980 alleged to have been executed by Krishna Devi, in favour of the plaintiffs, is forged and fabricated, based on fraud, misrepresentation etc. ?OPP” The order impugned, rendered by the trial Court, is thus, modified, to the extent referred to above. Civil Revision No. 1711 of 2004 --7-- 11. For the reasons recorded above, the revision petition is partly accepted. The order dated 06.03.2004, rendered by the Court of Civil Judge (Junior Division), Hisar, is modified in the manner, that the trial Court is directed to frame the aforesaid two issues, in lieu of issue no.2, already struck. The parties are directed to appear, in the trial Court on 2.09.2009 at 10.00 AM positively for further proceedings. (Sham Sunder) Judge August 07,2009 dinesh