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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SATYEN VAIDYA, J.
Shri Rakesh Babu (Since deceased) Through his Legal Representatives & Ors. - Plaintiffs
Versus
Shri Rajan Babu Sood, S/o. Shri Ram Roop - Defendant
Civil Miscellaneous Petition Main (Original) No. 370 of 2022
Decided On : 14-11-2022
Code of Civil Procedure, 1908 - Order 14 Rules 1 and 5 read with Section 151, Rule 3 of Order 18 - Indian Evidence Act, 1872 – Section 68, 102 - Indian Succession Act - section 63 – Will - Seeking declaration - Procedure for examination of witnesses - Whether plaintiff is entitled for decree of declaration to effect that parties are joint owner in possession of suit land - Whether plaintiff is entitled for decree of declaration to effect that impugned Will is outcome of fraud, misrepresentation and undue influence, as alleged - Even if the plaintiffs in the instant case begin the evidence, the burden to prove issue No. 8 will remain on defendant. In case defendant succeeds in discharging the burden, it will be for the plaintiffs to prove their allegations regarding Will being result of fraud, misrepresentation and undue influence. (Para 13).
Finding of the Court: Trial Court has also not noticed provision of Rule 3 of Order 18 of CPC, according to which, in case where there are several issues, burden of proving some of which lies on other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to evidence produced by other party; and, in latter case, party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on evidence so produced by party beginning; but party beginning will then be entitled to reply generally on whole case - This provision normally provides an option to plaintiffs to lead evidence on issues, burden of proving which lies on the defendant, or reserve it by way of answer to evidence produced by defendant - This process goes on and that is why it is said that onus keeps on shifting but burden does not - Plaintiffs had prayed for reframing/recasting of issues No. 2 and 9, as noticed above, which did not make any difference either on onus to prove such issues or burden to prove the facts necessary for proving the issues. Reframing of aforesaid issues, thus, will not change consequences to lead evidence as provided by Rules 1 and 2 of Order 18 of Code of Civil Procedure.
Result: Petition is disposed of
ORDER :
By way of instant petition, petitioners have assailed order dated 09.05.2022, passed by learned Senior Civil Judge, Court No. 1, Amb, District Una, H.P. in CMA No. 183-VI-2022, filed in Civil Suit No. 72-1 of 2015, whereby, the prayer made by the petitioners was partially rejected.
2. Brief facts necessary for adjudication of the petition are that Civil Suit No. 72-1 of 2015 filed by the petitioners against respondent is pending adjudication before the learned Senior Civil Judge, Court No. 1, Amb, District Una, H.P. The suit was initially filed by Mr. Rakesh Babu, Predecessor-in-interest of petitioners, who died during its pendency. The original plaintiff Sh. Rakesh Babu and respondent herein/defendant were sons of late Sh. Ram Roop. The subject matter of the suit is the estate left behind by Sh. Ram Roop. Whereas, Sh. Rakesh Babu claimed to have inherited the estate of Sh. Ram Roop alongwith defendant in equal shares and on such premise sought declaration as to joint ownership and possession with defendant over the properties left behind by Sh. Ram Roop, defendant has propounded a Will of Sh. Ram Roop in his favour and has claimed inheritance to the properties left behind by Sh. Ram Roop in accordance with Will. Plaintiffs have also assailed the Will propounded by defendant to be the result of fraud, misrepresentation and undue influence.
3. Defendant has also filed a counter claim against the plaintiffs seeking declaration that the land comprised in Khasra No.1715 measuring 00-28-99 hects, situated in Village Amb Khas, Tehsil Amb, District Una, H.P. has fallen to the share of defendant/counter claimant under the Will dated 08.09.2010 executed by late Sh. Ram Roop and the revenue entries depicting the ownership and possession of plaintiffs over the said land are wrong, illegal and void. In addition, a money decree of Rs.16,72,301/- has also been prayed for by the counter claimant.
4. Learned Trial Court framed following issued on 26.02.2019:-
2. Whether the plaintiff is entitled for decree of declaration to the effect that impugned Will dated 8.9.2010 is outcome of fraud, misrepresentation and undue influence, as alleged? OPP
3. Whether the Will is further required to be declared null and void and it was executed without possession sound disposition of mind since 2009 due to Parkinson diseases as alleged? OPP
4. Whether the plaintiff has suppressed true and material facts from this court, as alleged? OPD
5. Whether the plaintiff has no locus-standi to file the present suit? OPD
6. Whether the suit is liable to be dismissed on the ground of maintainability, as alleged? OPD
7. Whether the plaintiff is estopped by his act and conduct to file the present suit, as alleged? OPD
8. Whether the impugned Will dated 8.9.2010 is duly executed in due process of law, as alleged? OPD.
COUNTER-CLAIM
9. Whether the counter claimant/defendant is entitled decree of declaration on the basis of registered Will dated 8.9.2010, as alleged? OPD/CC
10. Whether the counter claimant/defendant is entitled for money decree of Rs.16,72,301/- on the basis of Will dated 8.9.2010, as alleged? OPD/CC
11. Whether the counter claim is liable to be dismissed on the ground of maintainability? OPP/Non-CC
12. Whether the counter claimant has no cause of action, as alleged/OPP/Non-CC
13. Whether the counter claim is time barred, as alleged, OPP/Non-CC
14. Whether the counter claimant has suppressed material facts from the court, as alleged? OPP/Non-CC
15. Whether the counter claim is not properly valued as alleged? OPP/Non-CC
16. Whether the counter claimant has no locus standi, as alleged? OPP/Non-CC
17. Whether this court has no jurisdiction, as alleged? OPP? Non-CC
18 Relief.”
5. Subsequent to framing of issues, plaintiffs filed an application before learned Trial Court under Order 14 Rules 1 and 5 read with Section 151 of Code of Civil
Law provides specific mode for attestation of Will under section 63 of the Indian Succession Act.
The court established that the burden of proof lies on the party asserting a claim, allowing for flexibility in who leads evidence first based on case circumstances.
A registered Will's validity under the Indian Succession Act requires compliance with statutory attestation requirements, and mixed questions of law and fact necessitate a full trial rather than dism....
The court upheld the principle that, ordinarily, the plaintiff must lead evidence first, barring exceptions, reaffirming the proper application of civil procedural rules regarding burden of proof.
The burden of proof for the validity of a Will lies with the propounders, who must meet legal requirements, including examining attesting witnesses, especially in the presence of suspicious circumsta....
In partition suits where defendants' claims can resolve the matter entirely, courts may direct them to lead evidence first per Order 18 Rule 1 CPC.
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