C. R. No. 1163 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 1163 of 2010 Date of Decision : February 23, 2010 Madan Lal .... Petitioner Vs. Nirmal Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Suryakant Gautam, Advocate for the petitioner. * * * L. N. MITTAL, J. (Oral) : Defendant Madan Lal has filed the instant revision petition impugning order dated 18.01.2010 (Annexure P-9), passed by Additional Civil Judge (Senior Division), Panipat. Mam Chand – plaintiff (since deceased and now represented by respondents as legal representatives) filed suit against the defendant – petitioner. In the suit, the plaintiff claimed right of inheritance to the Estate of Dhara on the basis of natural succession. The plaintiff also inter alia pleaded that Dhara never executed any Will during his lifetime and the alleged Will dated 25.04.2005, claimed by the defendant, is result of fraud and misrepresentation etc. and the said Will is null and void. The plaintiff moved application Annexure P-5 for taking photographs of thumb impressions of Dhara (since deceased) on the alleged Will after opening the sealed envelope and on the Power of Attorney in C. R. No. 1163 of 2010 2 some other appeal and of some other admitted thumb impressions of Dhara. The plaintiff also moved application Annexure P-7 for framing of additional issue. Both the said applications have been allowed by the trial court vide impugned order dated 18.01.2010 (Annexure P-9). Following additional issue has been framed :- “Whether the impugned Will dated 25.04.2005 was executed by the deceased Dhara son of Jalam in a clear disposing mind ? OPP.” Apparently, onus of the aforesaid issue has been wrongly placed on the plaintiff because it is defendant, who has pleaded that the Will was executed by Dhara. So, onus of the additional issue should have been placed on the defendant. Issue no.1 already framed in the suit is as under :- “Whether the impugned Will dated 25.04.2005 is illegal, null and void, as alleged, if so to what effect ? OPP.” By way of impugned order, the plaintiff has also been allowed to take photographs of the thumb impressions of Dhara, as prayed for in application Annexure P-5, noticed herein above. The plaintiff has been allowed to examine finger print expert in rebuttal evidence. Learned counsel for the petitioner vehemently contended that onus of issue no.1 was on the plaintiff, who led affirmative evidence on the said issue, and therefore, the plaintiff cannot be allowed to lead rebuttal evidence on the said issue. Learned counsel for the petitioner has cited various judgments in support of his contention. In a judgment of Hon'ble Supreme Court in the case of Daulat Ram and others vs. Sodha and others reported as AIR 2005 Supreme Court 233, it was held that the burden to prove that the Will was forged or was obtained under undue influence or coercion of by playing a fraud is on the person, who alleges it C. R. No. 1163 of 2010 3 to be so. In a judgment of this Court in the case of Surjit Singh and others vs. Jagtar Singh and others reported as 2006 (2) PLJ 342, a Division Bench of this Court held that the plaintiff cannot be allowed to lead evidence in rebuttal on an issue, of which, onus of proof is on the plaintiff. Similar proposition of law was laid down by the same Division Bench of this Court in another case namely Jagdev Singh and others vs. Darshan Singh and others reported as AIR 2007 Punjab and Haryana 118. A Single Bench of this Court in the case of Dinesh Kumar vs. State of Haryana and others reported as AIR 2003 Punjab and Haryana 73, also took the same view. There cannot be any dispute with the legal proposition that a party, pleading that the Will is result of fraud or undue influence, has to establish the same and the burden to prove the same is on the said party. In view of Division Bench judgments of this Court noticed herein above, there also cannot be any quarrel with the legal proposition that the plaintiff cannot be allowed to lead evidence in rebuttal on an issue, of which, onus of proof is on the plaintiff. However, in the instant case, the plaintiff in plaint Annexure P-1 has categorically alleged that the Will in question was never executed by Dhara (since deceased). Accordingly, the onus to prove that Dhara had executed any such Will has to be on the defendant, who has pleaded in his written statement Annexure P-2 that Dhara had executed the same. Consequently, additional issue has been framed for this purpose. In rebuttal of that additional issue, the plaintiff has the right to prove that the said Will was never executed by Dhara. This can be done by comparison of alleged thumb impressions of deceased Dhara on the Will with his admitted thumb impressons. If the Will is found to be not bearing the thumb impressions of Dhara, then the plaintiff has to succeed because in that event, it would be established that the said Will was not executed by Dhara. The plaintiff has the right to lead rebuttal evidence to this extent. However, it C. R. No. 1163 of 2010 4 needs to be clarified at once that the plaintiff would not be entitled to lead evidence in rebuttal on issue no.1 regarding fraud, misrepresentation etc. in the execution of the Will. However, the plaintiff has the right to lead evidence in rebuttal to prove that the alleged Will was in fact never executed by Dhara. In the case of Daulat Ram (supra), the onus to prove that the Will was obtained by undue influence, fraud or coercion, was held to be on the person, who pleaded it to be so. In the instant case also, the onus would be on the plaintiff to prove that the Will was obtained by misrepresentation, fraud etc. and on this aspect, the plaintiff would not be entitled to lead evidence in rebuttal. In the case of Surjit Singh (supra), the plaintiffs had pleaded that the deceased had executed a valid Will in their favour. Accordingly, onus to prove that the Will was executed by the deceased was on the plaintiffs in that case and so, they had no right to lead evidence in rebuttal to compare the thumb impressions of the deceased on Will with his admitted thumb impressions. In the instant case, however, it is the defendant, who had pleaded the execution of the Will by the deceased, and therefore, the plaintiff has right in rebuttal to lead evidence to prove that the Will was in fact never executed by the deceased and for this purpose, the plaintiff can certainly examine finger print expert. For the reasons recorded herein above, I find no merit in the instant revision petition, which is accordingly dismissed in limine. February 23, 2010 ( L. N. MITTAL ) monika JUDGE