Shanti Devi vs Daropti Devi - 2006 Supreme(SC) 1310

Headnote:(A) Code of Civil Procedure, 1908 - Order XLI Rules 23, 23A and 25 - Power of remand - Indian Succession Act, 1925 - Section 63 - Onus of proof regarding Will - The onus of proof to establish that a Will was validly executed by the testator lies on the person who is a beneficiary thereunder. Existence of suspicious circumstances is a relevant factor to determine if the testator was in a sound and disposing state of mind. (Paras 18, 21)

(B) Code of Civil Procedure, 1908 - Order XLI Rule 25 - Remand for determination of specific issue - Where an appellate court finds that an issue was wrongly framed or the onus of proof was wrongly placed, and only additional evidence is required to determine a question of fact, it is proper to remit only that specific issue to the trial court for evidence and findings, rather than remanding the entire suit. (Paras 23, 24, 25)

Facts of the case:
A dispute arose between sisters over a property based on a Will allegedly executed by the mother in favor of one of the daughters. After initial suits for injunction and declaration were dismissed, the appellate court observed that the trial court had wrongly placed the burden of proof on the plaintiffs to prove the invalidity of the Will, rather than on the beneficiary to prove its validity. Consequently, the appellate court remanded the entire suit to the trial court for fresh determination of the issue.

Findings of Court:
The court held that while the appellate court correctly identified that the onus of proof regarding the Will should be on the beneficiary, remanding the entire suit under Order XLI Rules 23 or 23A was improper. The appropriate procedure was to remit only the specific issue to the trial court for recording evidence and findings under Order XLI Rule 25.

Issues: Whether the appellate court was justified in remanding the entire suit back to the trial court when only the reframing of one issue and the recording of additional evidence on the onus of proof were required.

Ratio Decidendi: The power of remand under Order XLI Rule 25 of the Code of Civil Procedure allows an appellate court to refer a specific issue to the trial court for determination of a factual question. If the only requirement is to correct the framing of an issue and record evidence, the entire suit should not be remitted; the trial court should provide the findings on the specific issue back to the appellate court for final determination.

Result: Appeal allowed to the extent that the impugned judgment is modified to direct the trial judge to record evidence on the specific issue and return the findings to the appellate court.

Legal Category Hierarchy

1. Who bears the onus of proof to establish a will under the Indian Succession Act, 1925?

The onus to prove a will is on the party who claims under it, i.e., the beneficiary, and must be proved strictly in terms of Section 63 of the Indian Succession Act. (Para 4 )

JUDGMENT

S.B. SINHA , J :

Leave granted.

An order of remand passed by a Division Bench of the Delhi High Court dated 07.11.2003 passed in R.F.A. No. 435 of 1992 is in appeal before us.

The parties are sisters being the daughters of Shri Tara Chand Madan and Smt. Budho Bai (since deceased). Tara Chand Madan died on 21.03.1954. Smt. Budho Bai executed a deed of sale in respect of the property bearing No.16/26, Old Rajinder Nagar, New Delhi, by a registered deed dated 14.06.1965. She allegedly disowned Respondent No.1 as her daughter. A Will was executed by her on 22.02.1977, beneficiary whereof was said to be the appellant. Smt. Budho Bai died on 20.04.1980.

Appellant filed an application for mutation of her name. Respondent filed a suit for perpetual injunction, which was marked as Civil Suit No. 308 of 1980, claiming, inter alia, for the following reliefs :

"(a)A decree for perpetual injunction restraining the Defendant No. 3 from dealing the said property in any manner whatsoever and from getting the said property No. 16/26, situated at Old Rajinder Nagar, New Delhi, together with the lease hold rights of the land thereunder admeasuring 85 sq. yds. Or thereabouts substituted/transferred exclusively in her name to the exclusion of the Plaintiffs from Defendentrs Nos. 1 & 2 on the basis of the alleged WILL dated 22.02.1977 and also restraining the Defendants 1 and 2 from enforcing or acting in any manner whatsoever on the basis of the said alleged WILL dated 22.02.1977 and thereby transferring and/or substituting the said property in favour of the Defendant No. 3 to the exclusion of the Plaintiffs be passed in favour of the Plaintiffs and against the Defendants.

(b)The costs of the suit be also awarded against the Defendants."

According to the appellant, the said suit was not maintainable. It was dismissed as such by an order dated 18.12.1981, holding :

"The allegations of the plaintiffs being out of possession have not been denied and controverted with specifically and categorically in the corresponding paragraph of the replication to the written statement of defendant no. 3 and the suit is not maintainable unless the plaintiffs seek the remedy of possession in respect of their shares in the property in dispute. I do not agree with the counsel of the plaintiff that provisions of Section 31 are permissive."

The respondent filed another suit, which was marked as Suit No. 276 of 1992, for declaration and consequential relief. The said suit was also dismissed being not maintainable being hit under Order II Rule 2 of the Code of Civil Procedure. The learned judge, however, also dealt with the other issues involved in the suit.

In the Appeal filed by the respondents, the High Court observed that as the learned Trial Judge wrongly framed the issue and opined that the onus of proof was on the plaintiffs and not on the defendant, the matter should be remitted to the Trial Judge, stating :

"18.In the case in hand, we are of the view that the learned trial court did not frame Issue No. 4 in its true perspective. The onus to prove Issue No. 4 ought to have been put on the respondent who pleaded about the existence of the Will instead of being put on the appellants and that too in negative. We fail to comprehend as to how the appellants shall give proof of the non-existence of the Will. Respondent ought to have brought evidence on Issue No. 4 and of course it was open to the appellants to cross-examine the witnesses of the respondent on this issue to prove that the Will on which the respondent was placing reliance was in fact fictitious and not executed by Smt. Budho Bai. The appellants by no stretch of imagination could lead evidence on this issue. Therefore, it seems to us that this issue was not correctly adjudicated primarily because of the reason that onus to prove this issue was erroneously put on the appellants instead of being put on the respondent who was under legal obligation to prove this issue strictly in terms of Sec

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2006 Supreme(SC) 1310

SUPREME COURT OF INDIA
S.B. Sinha & Markandey Katju
Shanti Devi-Appellant
Daropti Devi & Ors.-Respondents
Appeal (civil) 5813 of 2006
[Arising out of SLP (Civil) No. 4127 of 2004]
DECIDED ON : 14/12/2006

The beneficiary of a Will bears the onus of proving its validity. If an appellate court finds an issue was wrongly framed or the onus misplaced, it should remit only that specific issue for evidence under Order XLI Rule 25 CPC, rather than remanding the entire suit.

Legal Category Hierarchy

Table of Contents

1. Who bears the onus of proof to establish a will under the Indian Succession Act, 1925?

Judicial Analysis

2006 Supreme(SC) 1310

SUPREME COURT OF INDIAS.B. Sinha & Markandey KatjuShanti Devi-AppellantDaropti Devi & Ors.-RespondentsAppeal (civil) 5813 of 2006[Arising out of SLP (Civil) No. 4127 of 2004]DECIDED ON : 14/12/2006

The beneficiary of a Will bears the onus of proving its validity. If an appellate court finds an issue was wrongly framed or the onus misplaced, it should remit only that specific issue for evidence under Order XLI Rule 25 CPC, rather than remanding the entire suit.

Legal Category Hierarchy

Table of Contents

1. Who bears the onus of proof to establish a will under the Indian Succession Act, 1925?

Judicial Analysis

SUPREME COURT OF INDIA
S.B. Sinha & Markandey Katju
Shanti Devi-Appellant
Daropti Devi & Ors.-Respondents
Appeal (civil) 5813 of 2006
[Arising out of SLP (Civil) No. 4127 of 2004]
DECIDED ON : 14/12/2006