The main legal point established in the judgment is that when a Will is propounded by the defendant, and the existing issue does not cover the question of the Will's validity, the Court may frame an additional issue regarding the validity of the Will, with the onus of proving its due execution on the defendant-respondents.

ALKA SARIN, J.

1. The present revision petition has been filed under Article 227 of the Constitution of India challenging the order dated 15.07.2017 whereby the application filed by the plaintiff-petitioners for framing an additional issue has been dismissed.

2. The brief facts relevant to the present lis are that the plaintiff-petitioners filed a suit for declaration to the effect that they are the joint owners to the extent of 1/3rd share in respect of –

a) House bearing No. 45, situated at Balwant Nagar, Jalandhar, built on area measuring 10 marlas, shown red in the site plan attached and bounded as under:

b) and further to the effect that the sale deed executed by the defendants No.2 to 4 in favour of the defendant No.9 in respect of the land measuring 8 kanals 10 marlas out of 13 kanals 4 marlas comprised in Khata No.280/396, 459/639-640-641-642 Khasra No.48//20/2(1-6) 48//19/3(1-8) 153(0-3) 50//13/4(1-3) 14/1(2-18) 48//21/2(3-4) 22/1(2-12) 50//13/3(0-9) 177(0-1) as per entries contained in the copy of the jamabandi for the year 2000-01 situated at Village Kandola, Tehsil and District Jalandhar for a sum of Rs.5,31,500.00 vide sale deed dated 17.12.2003 document No.925 is illegal, unlawful, null & void, without any authority, more than share and does not confer any title to the defendant No.9 and is liable to be set aside and further to the effect that if any alienation is made out of the land in dispute, the same is illegal and unlawful and is not binding on the rights of the plaintiffs in any manner and is liable to be set aside and further to the effect that the Mutation, if any sanctioned in the names of the defendants or their vendees is also illegal, unlawful, result of misrepresentation and fraud and not binding on the rights of the plaintiffs.

AND FURTHER to the effect that the Mutation sanctioned in favour of the defendants No.2 to 4 is illegal, unlawful, null & void, not binding upon the rights of the plaintiffs and further to the effect that the alienation if any, made on the basis of the said mutation is also illegal, unlawful, null & void and is not binding on the rights of the plaintiffs and the same is liable to be set aside.

Suit for joint possession of 1/3 share of the above properties to the extent of 1/3 share.

AND FURTHER to the effect that the plaintiffs are also entitled to 1/3 share in the movable estates, including FDRs, Savings Account with United Commercial Bank, Adampur Branch or any other bank.

ON THE BASIS OF natural succession and the defendants No.1 to 5 have no right, title or interest in the said 1/3 shares of the plaintiff.

WITH

CONSEQUENTIAL relief of suit for permanent injunction, restraining the defendants No.1 to 5, their attorneys, associates, agents or representatives from selling, mortgaging, exchanging, transferring the properties mentioned in the head note (a) and (b), any specific portion, more than their share and further from changing the nature of the property AND further from changing the nature of the property and further from withdrawing any amount against the movable properties, detailed in the head note, left by Smt. Kesri Devi daughter of Shri Ram Dass.

3. The defendant-respondents herein filed a written statement wherein a Will dated 23.11.1998 was propounded in their favour alleged to have been executed by Smt. Kesri Devi. During the pendency of the suit, the plaintiff-petitioners moved an application for framing of an additional issue qua the Will. A reply was filed to the said application and vide the impugned order dated 15.07.2017 the application has been dismissed on the ground that the case falls in the category of Samadhan cases and that the proposed issue is already covered under the issues framed by the Court. Hence, the present revision petition.

4. L