High Court Civil Revision petition dismissed. Trial court rightly denied plaintiffs permission to examine handwriting expert in rebuttal after defendants led expert evidence challenging the will's execution, despite plaintiffs reserving such right earlier.
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Civil Revision No. 5548 of 2011
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IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Civil Revision No. 5548 of 2011(O&M) Date of decision. 13.09.2011
Jasdev Singh and another
.... Petitioners
Versus
Jagdev Singh and another
...... Respondents
CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK
Present: Mr.Pardeep Goyal, Advocate for the petitioners.
Vijender Singh Malik, J.
C.M.No.22165-CII of 2011
Miscellaneous application is allowed as prayed for.
Civil Revision No. 5548 of 2011
This is a petition brought by the plaintiffs under the provisions of Article 227 of the Constitution of India challenging the validity of the order dated 06.08.2011 (Annexure P-10) passed by learned Civil Judge (Senior Division) Sangrur whereby the petitioners have not been permitted to examine the handwriting and fingerprint expert in rebuttal evidence in civil suit No.394 titled as Jasdev Singh and another v. Jagdev Singh and another.
Civil Revision No. 5548 of 2011 --2--
The parties are litigating in respect of some land on the basis of the genuineness or otherwise of will dated 10.02.1990. The petitioners had claimed Sukhdev Singh to have executed this will in their favour while the respondents had asserted the will to be forged and fabricated document.
I have heard Mr. Pardeep Goyal, learned counsel for the petitioners and have gone through the record.
Learned counsel for the petitioners has submitted that the petitioners claimed in para no.2 of their plaint (Annexure P-2) that Sukhdev Singh was unmarried and issueless and he executed an unregistered will dated 10.02.1990 in their favour. According to him, in reply to this plea, the defendants in written statement (Annexure P-3) have claimed that the alleged will is forged and fabricated and that it was never executed by Sukhdev Singh. He has submitted that thereafter the defendants filed another suit, in which the will was again challenged as forged and fabricated document and the two suits were consolidated vide order dated 12.10.2004 by the court of Additional Civil Judge (Sr. Division), Sangrur (Annexure P-1). He has submitted that although issue no.1 framed in the case required the petitioners to prove that they are owners in possession of the suit land on the basis of the will dated 26.02.1992 executed by Sukhdev Singh, the petitioners led their evidence in affirmative and reserved their right to lead evidence in rebuttal, by way of their statement dated 11.8.2005 (Annexure P-8). He has submitted that onus is always shifting in a
Civil Revision No. 5548 of 2011 --3--
civil case from one party to the other. Referring me to a decision of this court in Kashmir Kaur v. Bachan Kaur 2000(2) RCR (Civil) 133 , learned counsel for the petitioners has submitted that the plaintiffs have a right to begin under Rule 1 of Order 18 and will state their case under Rule 2. According to them, then the defendants have right to state their case and produce any evidence and then under Rule 3 the plaintiffs have right to reply the case of the defendants as a whole, including the pleas which they did not know at the time of the filing of the suit.
He has placed reliance on a decision of Hon'ble Supreme Court of India in Pentakota Satyanarayana and others v. Pentakota Seetharatnam and others, AIR 2005 Supreme Court 4362, where the following is said in para no.21:-
“......... As far as Ex.B9 Will is concerned, the appellants being the profounder, the initial onus will be on them to prove execution of the Will. Thereafter, the onus would shift to the respondents. They have to establish their case of undue influence or coercion. Then the onus would shift to the appellants to remove the suspicious circumstances, if any...........”
Learned Civil Judge (Sr. Division), Sangrur, vide his order
dated 06.08.2011 has declined the request of learned counsel for the plaintiffs for permission to examine the handwriting expert in rebuttal
Civil Revision No. 5548 of 2011 --4--
evidence. He has noticed the fact that onus to prove the execution of the will dated 26.2.1992 by Sukhdev Singh was on the plaintiffs. According to him, after the defendants had led their evidence including the examination of expert witness, the plaintiffs had placed on record affidavit of N.K. Jain, Handwriting and Finger Print Expert in rebuttal evidence. The right of the plaintiffs to examine him was questioned by the other side and hence the impugned order was passed.
It is true that the onus is not static in civil cases. It keeps shifting. The onus initially was on the plaintiffs-petitioners to prove the execution of the will. Then to disprove the fact the onus shifted to the defendants. The question that now arises is as to whether despite reserving a right while closing the affirmative evidence, the plaintiffs can lead this evidence in rebuttal.
The plea that the will is forged and fabricated document and was never executed by Sukhdev Singh is not a plea which is not covered by issue no.1. Due execution of a will is one facet of the coin and the plea that it is a forged and fabricated document is the other side of the same coin. It is not a case where the defendants have challenged the will on account of some suspicious circumstances regarding which they were to lead evidence for the first time at their turn. The distinction becomes very clear in Pentakota Satyanarayana and others v. Pentakota Seetharatnam and others' (supra) where the onus of the respondents was to establish their case of undue influence or coercion. The plea of undue influence or coercion is independent of
Civil Revision No. 5548 of 2011
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the aspect of execution of the will. After leading evidence in affirmative on issue no.1, the plaintiffs do not have a right to lead evidence of handwriting expert to rebut the evidence of the defendants which itself was in rebuttal to the evidence of the plaintiffs. Reserving of right in such a situation would be of no help to the plaintiffs. Learned trial court had thus, rightly declined the said right to the plaintiffs.
Consequently I find no patent illegality in the order passed by learned trial court. The revision petition is accordingly dismissed.
(VIJENDER SINGH MALIK) JUDGE
13.09.2011 dinesh
2 issues framed by the court
Whether plaintiffs can examine a handwriting expert in rebuttal after reserving the right upon defendants adding expert evidence challenging the will.
Whether the plea of a will being forged is independent of the issue of suspicious circumstances requiring fresh rebuttal evidence.
Colour shows how this judgement treated each authority
Kashmir Kaur v. Bachan KaurReferred¶23
Kashmir Kaur v. Bachan Kaur 2000(2) RCR (Civil) 133
Pentakota Satyanarayana and others v. Pentakota Seetharatnam and othersReferred¶24
Pentakota Satyanarayana and others v. Pentakota Seetharatnam and others, AIR 2005 Supreme Court 4362 · Who else cites this
Jasdev Singh
Sukhdev Singh
Jagdev Singh
Vijender Singh Malik
As recorded by the court registry
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