fabricated is on the respondent, the petitioner must have a right of rebuttal. Now that the interim order passed in the proceedings pending before the Court below is challenged before me, I must observe that the Court was in error in putting the burden for proving the document as forged and fabricated on the respondent. If a person specifically pleads a forgery which only means that the genuineness of the document is put to test, then the burden of proving the document is on the person who propounds the same. No person who takes the plea that the document is a forgery would take upon himself the burden of proving the same. The issue framed by the court below which is reproduced above is erroneous and the issue framed is directed to eschewed as wholly wrong. No burden of proof of disproving genuineness of a Will can ever be on the respondent. Section 68 of the Indian Evidence Act sets out a rule of evidence of placing the burden always on the person who propounds it whether there is a denial of the same or not. There is no way that the petitioner can imagine that the respondent will have to take the burden upon himself to prove that the document is forged and fabricated if the defence is so taken. Even without such a defence, the burden is always on the person who seeks for issuance of a probate. If he did not produce evidence in the affirmative of proving that the signature contained in the document was of the testator, he cannot seek for bringing an expert to prove the document after the respondents' evidence is concluded. After the respondent has brought the evidence, the plea of the petitioner was rightly rejected. I will find no reason for interfering with the same.
