Rebuttal Evidence--Will--Proof of Execution--Once the onus to prove the Will is on the defendant, the plaintiff is certainly entitled to lead evidence in rebuttal.

Mrs. Anita Chaudhry, J.:- This is plaintiff’s revision preferred against the order dated 19.10.2015 passed by the trial Court by virtue of which her application for tendering examination-in-chief by way of affidavit of Narinder Khosla, in rebuttal, has been dismissed.

2. To adjudicate the issue involved, it is desirable to refer to the facts of the case.

3. The plaintiff-petitioner Sonia Gupta filed a suit against her brother and Estate Office, Chandigarh seeking joint ownership of H. No. 2040, situated at Sector 40 Chandigarh with her brother on the basis of natural succession. It was her case that the mother of the parties had died on 29.11.1987 and their father died intestate on 15.09.2008. Her plea was that both the siblings were entitled to half share in the property which was previously owned by their father. It was claimed that her request was not acceded to by the Department as a Will purported to be executed by her father was produced by dint of which her brother had claimed full ownership in the property. A challenge to the Will was also laid in the suit.

4. Respondent No.1 contested the suit and staked his claim on the suit property on the basis of Will dated 10.08.2005.

5. Issues were framed and the parties led their evidence. When the case was fixed for rebuttal evidence, an application for filed by the plaintiff seeking permission to tender by way of affidavit the examination in chief of Narinder Khosla in rebuttal. Reply to the application was filed. The trial Court dismissed the application.

6. Dis-satisfied with the same, instant revision petition has been filed by the plaintiff.

7. I have heard learned counsel for the parties and have perused the paper-book carefully.

8. Learned counsel for the petitioner had submitted that the trial Court has erred in declining the prayer and the plaintiff has a right to lead evidence in rebuttal to the evidence produced by the defendant. According to learned counsel, the Will was propounded by respondent-defendant No.1 and it was upon him to prove its execution and that it was free from all suspicions and after the defendants had led the evidence and closed it on 21.05.2015, immediately thereafter on 27.05.2015 this application was filed by the plaintiff seeking permission to tender the affidavit of Mr. Narinder Khosla who was their family friend to say that the deceased had suffered a paralytic attack before his death and was not happy with the conduct of his son. It was urged that they wanted to lead evidence and denial thereof has caused serious prejudice. He has referred to Jagaminder Kaur Vs. Rajdip Kaur @ Nitu, 1998(4) RCR(Civil) 513, Gurbaksh Singh Vs. Jagat Singh & Ors. 1990(2) Cur LJ 41, Biru Ram & Ors. Vs. Roshan Lal & Ors. 2015(2) PLR 491, Pawan Kumar Vs. Surinder Pal & Anr., [2009(3) Law Herald (P&H) 2098] : 2010(8) RCR(Civil) 1958, Pappu @ Rai Singh Vs. Smt. Chander Wati & Ors., 2012(4) PLR 607, Balvinder Singh Vs. Balbir Singh & Ors., 2014(1) Law Herald (P&H) 585, Jaswinder Singh Vs. Rajwant Kaur & Ors., 2014(2) Law Herld (P&H) 1138, Thiruvengada Pillai Vs. Navaneethammal & Anr., [2008(2) Law Herald (SC) 1096] : 2008(2) RCR(Civil) 262, K. Laxmanan Vs. Thekkayil Padmini & Ors., 2009(1) Recent Apex Judgments 78, H. Venkatachala Iyengar Vs. B.N. Thimmajamma & Ors., 1959 AIR(SC) 443, R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & VP Temple & Ors., 2003(4) RCR (Civil) 704 and A Raghavamma & Anr. Vs. A. Chenchamma & Anr., 1964 AIR(SC) 136.

9. Learned counsel for respondent No.1 had urged that the trial Court had placed onus of the main issue upon the plaintiff and she was to prove that the Will was not legal and valid document and it was for the plaintiff to produce evidence in this regard when her affirmative evidence was going on and once she had failed, she had moved the application to fill up the lacuna and the application was rightly dismissed by the trial Court. He had placed reliance upon Jagdev Singh & Ors. Vs. Darshan Singh & Ors., 2007(1