The court affirmed that for an issue to be framed regarding a will, there must be a material proposition of fact or law claimed by a party.

Satyen Vaidya, Judge (Oral).

Heard.

2. By way of instant petition, petitioner has assailed order dated 15.12.2020 passed by the learned Senior Civil Judge, Court No.1, Paonta Sahib, District Sirmaur, H.P. in case No.367/1 of 2013 titled as “Smt. Tajjan vs. Mumtaz Ali & Ors.”, whereby the application of respondents under Order 14 Rule 5 of the Code of Civil Procedure (in short the Code) has been allowed.

3. Petitioner herein is the plaintiff in Civil Suit No.367/1 of 2013 pending on the files of learned Senior Civil Judge, Court No.1, Paonta Sahib, District Sirmaur, H.P. She has filed the suit for declaration that on the death of Sh. Munji, the entire suit property came to be inherited by the plaintiff and defendants as Sh. Munji had died intestate. Plaintiff has further sought a declaration that Sh. Munji was not legally competent to execute the release deeds dated 07.06.2001 and 27.01.2009 and gift deed dated 04.04.2001 and therefore, all such transactions and the mutations attested on its basis were wrong, illegal, void and inoperative against the rights of plaintiff. As a consequence, a decree of permanent prohibitory injunction has also been claimed.

4. The defendants are contesting the suit by filing a written statement. An amendment to written statement has also been caused during the pendency of the suit. From the stand taken by the defendants in their written statement, it becomes evident that they have defended the action of Munji, whereby the gift and release deeds were executed by him. The defendants are claiming right, title and interest in the suit property only on the basis of gift and release deeds, which have been challenged by the plaintiff in the suit.

5. Additionally, in para 4 of the written statement, an averment has been made by the defendants that Munji had executed a Registered Will in favour of defendant No.1 on 13.06.1990. It will be relevant to notice the exact text of para 4 of the written statement as under:-

“That the para No. 4 of the plaint is incorrect, wrong, hence denied. Sh. Munji has transferred his entire share in the suit land in favour of defendant No.1 during his life time, through registered title deeds due to love and affection with his son i.e. defendant No.1 and he has also executed the will of other land in favour of defendant No.1. Sh. Munji was very much competent to transfer his land in favour of any person during his life and the plaintiff never objected said Sh. Munji during his life to transfer the said land in favour of defendant No.1. The plaintiff and proforma defendants have no right, title and interest in the suit land in any manner. The deceased Munji the father of the defendant No.1 had executed and registered a will of his entire movable and immovable property in favour of the defendant No.1 on 13/06/1990, which is registered in the ofÏce of Sub Registrar Paonta sahib. The said will is legal, valid and genuine.”

6. On the basis of the aforesaid averments made in para 4 of the written statement, the defendants filed an application under Order 14 Rule 5 of the Code before learned Trial Court with a prayer to frame an additional issue as under:-

“a) Whether the Will No.90 dated 13.6.1990 is legal, valid and genuine and binding upon the plaintiff and performa defendant?”

7. It was averred in the application that while preparing the case for the evidence of defendants, learned counsel for defendants found out the omission. According to defendants, the issue was required to be framed as it was necessary for decision of the case. It was also submitted that in the event of non-framing of the proposed issue there will be multiplicity and prolongation of litigation between the parties.

8. Plaintiff co