Punjab & Haryana High Court Overturns Remittal Order in Will Dispute, Emphasizes Appellate Court's Duty to Analyze Evidence

Chandigarh : The Punjab and Haryana High Court, in a significant ruling, has set aside a First Appellate Court's order that remitted a will dispute case back to the trial court for a fresh decision. Justice Arvind SinghSangwan , presiding over the second appeal, emphasized that an appellate court must critically appraise the evidence and the lower court's reasoning before opting for remittal, and underscored the correct principles for framing issues and assigning the burden of proof in cases concerning the validity of a Will.

The judgment, dated July 7, 2020, in the case of SHASHI SHARMA AND ANOTHER vs KULDEEP SHARMA AND OTHERS (SAO 11 / 2020) , restores the first appeal to its original number for a decision on merits.

Case Background

The dispute originated from a suit for declaration and possession filed by the plaintiffs (now appellants, Shashi Sharma and another) concerning the property of Gurcharan Dass , who passed away on October 27, 2002. The defendants No. 1 and 2, Kuldeep Sharma and another (sons of Gurcharan Dass ), contested the suit by propounding a Will dated April 17, 1997, purportedly executed by Gurcharan Dass in their favor.

The Trial Court, after examining the evidence, dismissed the plaintiffs' suit, finding the Will dated 17.04.1997 to be surrounded by suspicious circumstances.

Aggrieved by the Trial Court's decision, defendants No. 1 and 2 filed a first appeal. The First Appellate Court, however, did not decide the appeal on merits. Instead, it remitted the case back to the Trial Court. The First Appellate Court reasoned that: 1. Proper issues regarding the validity of the Will were not framed by the Trial Court. 2. No attesting witness to the Will had been examined.

The original plaintiffs (appellants in the High Court) challenged this order of remittal in the present second appeal.

High Court's Rationale and Key Findings

The High Court meticulously examined the First Appellate Court's decision and found several errors in its approach, leading to the setting aside of the remittal order.

1. Improper Framing of Issues and Burden of Proof

The High Court noted that the First Appellate Court, while attempting to rectify the issues, itself framed an additional issue incorrectly by placing a "negative onus" on the plaintiffs. The issue framed by the First Appellate Court was: "Whether the plaintiffs are not entitled to succeed the estate of Gurcharan Dass on the basis of alleged Will dated 17.04.1997? OPP (Onus on Plaintiff)"

Justice Sangwan observed that this framing was erroneous. The Court clarified: > "The onus to prove the Will is always on the propounder. In this case, defendant no.1 and 2 propounded the Will dated 17.04.1997. Hence, the issue should have been as under:- > ‘Whether Gurcharan Dass executed a valid Will on 17.04.1997 bequeathing his property in favour of defendant no. 1 and 2? OPD (defendant no. 1 and 2)’"

This correction highlights a fundamental principle: the party asserting the validity of a Will (the propounders, i.e., defendants No. 1 and 2 in this instance) bears the burden of proving its due execution and genuineness.

2. Erroneous Observation on Examination of Attesting Witness

The High Court found the First Appellate Court's observation that "no attesting witness of the Will has been examined" to be factually incorrect. The judgment pointed out: > "In fact, DW3 Jagan Nath was examined by the defendants."

The record indicated that DW3 Jagan Nath , an attesting witness to the Will, had indeed testified before the Trial Court.

3. Duty of the First Appellate Court

The High Court emphasized that the First Appellate Court, as the final court of facts, has a duty to re-appreciate the entire evidence on record and arrive at its own independent findings. Quoting from established legal principles, the Court stated: > "Before the judgment and decree passed by the court is set aside by the appellate court, it is mandatory to analyze the reasons recorded by the lower court and set aside the same after its critical appraisal."

The Court referred to Order XLI Rules 23, 23-A, 24, and 25 of the Code of Civil Procedure, 1908 (CPC), which delineate the powers of an appellate court, including the power to remit a case or frame additional issues. However, such powers are to be exercised judiciously. Remittal should not be a routine measure, especially when the evidence on record is sufficient for the appellate court to decide the matter.

The judgment clarified that unless the appellate court critically analyzes the lower court's reasons and forms an opinion that a re-trial is necessary, remitting the case back is not justified. Order XLI Rule 25 CPC allows the appellate court to frame additional issues and either take evidence itself or direct the trial court to do so, and then decide the appeal.

Decision and Implications

In light of these findings, the High Court allowed the second appeal filed by Shashi Sharma and another. The key outcomes of the judgment are: * The order of the First Appellate Court remitting the case to the Trial Court was set aside. * The first appeal was restored to its original number before the First Appellate Court. * The appellants (original plaintiffs) were directed to appear before the First Appellate Court on September 7, 2020, for further proceedings.

This ruling serves as an important reminder to appellate courts regarding their obligations to thoroughly examine the evidence and reasoning of lower courts before ordering a remittal. It also reinforces the correct legal principles concerning the framing of issues and the burden of proof in contentious Will cases, ensuring that the onus correctly lies on the party propounding the Will. The decision aims to prevent undue delays and ensure that appeals are decided on merits where possible.