The main legal point established is that in a dispute related to the validity of a Will and a court decree, the court may allow evidence to prove paternity, and the application for DNA test may be dismissed without commenting on the merits of the case.

Ajay Kumar Mittal, J

1. The plaintiff-petitioners are aggrieved by the order dated 22.1.2011 whereby the trial court had dismissed the application which had been filed by them with a prayer that DNA test of Jarnail Singh, defendant No.1 and Kulwant Kaur, defendant No.3 be conducted so as to determine whether defendant No.1 was born from the wedlock of defendant No.3 Kulwant Kaur and Dharam Singh who had expired on 6.2.1986.

2. Brief facts may be noticed. The plaintiff-petitioners filed a suit for declaration that they were owners of land to the extent of 1/7th share each of land measuring 107 kanals 6 marlas alongwith defendant Nos. 2 and 3. The defendant Nos.1 and 3 on appearance had taken the plea that Charan Kaur, mother of the plaintiffs and grand-mother of Jarnail Singh had executed a registered Will on 17.12.1988 in favour of Jarnail Singh and Surjit Singh and further that there was a court decree dated 17.9.1990 wherein Charan Kaur had admitted execution of registered Will in favour of defendant Nos. 1 and 2. Replication was filed by the petitioners. From the pleadings of the parties, issues were framed by the trial court. Thereafter, an application was filed by the petitioners with a prayer that DNA test of Jarnail Singh, defendant No.1 and Kulwant Kaur, defendant No.3 be conducted so as to determine whether defendant No.1 was born from the wedlock of defendant No.3 Kulwant Kaur and Dharam Singh. The application was contested by the respondent Nos. 1 and 3 by filing reply. The trial court dismissed the said application vide order impugned herein. Hence this revision petition.

3. Learned counsel for the petitioners submitted that the trial court had erroneously dismissed the application as it was essential for the just decision of the case and paternity of defendant No.1 was required to be determined so that the defence taken by the defendants be falsified. Further, reference was made to Section 112 of the Indian Evidence Act also. Learned counsel for the petitioners relied upon a Division Bench judgment of the Delhi High Court in Rohit Shekhar v. Narayan Dutt Tiwari, 2010(168) DLT 326 to contend that in a case where question of paternity had to be adjudicated, the court should not have rejected the prayer for DNA test in the manner it has been done.

4. Learned counsel for the respondents on the other hand besides supporting the order passed by the trial court vehemently contended that the dispute in the present case was not relating to the question of paternity of defendant No.1. Infact, the dispute was whether Charan Kaur had executed a registered Will dated 17.12.1988 where under defendant No.1 was the beneficiary and furthermore decree dated 17.9.1990 was a valid decree. In such a situation, the application for conducting DNA test was not only malafide and frivolous but was rightly rejected by the trial court.

5. After hearing learned counsel for the parties and perusing the record, I do not find any merit in the arguments raised by the counsel for the petitioners. It is not disputed that the plaintiffs have claimed 1/7th share each in the property of Charan Kaur and the controversy before the trial court relates to examining the validity of the registered Will dated 17.12.1988 and decree dated 17.9.1990 in favour of defendant No.1-respondent. The suit is not relating to paternity of Jarnail Singh as has been sought to be canvassed by the counsel for the petitioners and evidence can be led to prove the fact that Jarnail Singh is not the son of Dharam Singh. The trial court was, thus, right in rejecting the application with the following observations :-

“8. I have given thoughtful consideration to the respective submissions of both the sides and have gone through the record on file very carefully. The contention of the applicant is that Jarnail Singh is not the son of the deceased Dharam Singh. It was argued that Kulwant Kaur is falsely claiming Jarnail Singh to be the son of the deceased Dharam Singh. It has