The Court held that while the propounder generally bears the burden to prove a Will, the burden of proving validity in this case concerning coparceners was to shift depending on circumstances arising during evidence.
Onus of issue No.1 is fixed on the Original Petitioners instead of the Original Petition Plaintiff.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C.R. No. 6742 of 2009 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.R. No. 6742 of 2009 Date of Decision: November 18, 2009
Swaran Kaur and others
…..Petitioners
Vs.
Sukhwinder Singh and others
…..Respondents
CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI.
-.-
Present:Mr. Saurabh Bajaj, Advocate for the petitioners.
-.-
M.M.S. BEDI, J. (ORAL)
Vide impugned order the onus of issue No.1 has been put on the plaintiff- petitioners regarding the validity of Will dated January 24, 2002 alleged to have been executed by Sardara Singh in favour of defendant- respondents. The suit has been filed by the plaintiffs claiming that they being coparcener, the property could not be alienated by Will by Sardara Singh in favour of the defendants. In view of the said prospective,
C.R. No. 6742 of 2009 [2]
the validity of the Will in favour of defendants has been challenged by the plaintiffs.
Counsel for the petitioners has vehemently contended that the propounder of the Will has to establish the Will as per the settled principle of law.
I have heard counsel for the petitioners and I am of the opinion that there is no dispute regarding the proposition that one who is beneficiary and propounds the Will in a civil suit has to establish the same. The peculiar circumstances of this case indicates that it is the plaintiffs who have approached the Court for a declaration of the Will dated January 24, 2002 alleged to have been executed by Sardara Singh in favour of his grand sons i.e. defendants, is not a Will in the eyes of law and that the same was not executed by the said deceased. If seen in context to the provisions of Section 102 of the Evidence Act, the burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side. Seen in context to the spirit of said provision, no doubt the defendant- respondents have to establish the Will as the same has been challenged by the plaintiffs but since the plaintiffs have claimed to be coparcener, in the interest of justice, in the peculiar circumstances of this case, I am of the opinion that in the present case the onus regarding the validity of the Will would be shifting from one party to another depending upon the circumstances emerging during the course of leading of evidence. It cannot be laid down at this stage as to on whom the initial onus will rests.
C.R. No. 6742 of 2009 [3]
It is, therefore, ordered that onus of issue No.1 will be O.P. Parties instead
of O.P. Plaintiff.
Disposed of.
November 18, 2009 (M.M.S.BEDI) sanjay JUDGE
1 issue framed by the court
Who bears the initial burden of proving the validity of a challenged Will?
1 provisions across 1 enactments
Swaran Kaur and others
Sukhwinder Singh and others
M.M.S. Bedi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
