Punjab-Haryana High Court
Jaswant Singh Son Of Kulwant Singh Son Of ... vs Sucha Singh Son Of Attar Singh Son Of ... on 13 September, 2012
Author: K. Kannan
Bench: K. Kannan
CR No.2881 of 2012(O&M) [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.2881 of 2012(O&M)
Date of Decision: 13.09.2012
Jaswant Singh son of Kulwant Singh son of Pyara Singh,
resident of village Kariwali, Tehsil Rania, District Sirsa.
... Petitioner
Versus
Sucha Singh son of Attar Singh son of Banta Singh, resident of
village Kariwali, Tehsil Rania, District Sirsa and others.
... Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
Present:Mr. Ashok Verma, Advocate and
Ms. Kamalpreet Kaur, Advocate,
for the petitioner.
Mr. S.C. Chhabra, Advocate,
for respondents 1 and 2.
None for respondents 3 and 4.
*****
1.Whether reporters of local papers may be allowed to
see the judgment? YES
2.To be referred to the reporters or not? YES
3.Whether the judgment should be reported in the
digest? YES
K. KANNAN, J. (Oral)
1. The application had been filed for recasting the issue by the plaintiff when the defendant was denying the Will set up by the plaintiff as a forgery. The burden of proof shall always be on a person who propounds the same. The issues framed were:
Whether Smt. Kartar Kaur executed a valid Will on 16.04.2008 in favour of Jaswant Singh defendant? and If above issue No.1 is proved, whether the Will dated 16.04.2008 is forged and CR No.2881 of 2012(O&M) [2] fabricated Will of Smt. Kartar Kaur? If there was an issue relating to the genuineness, there is no need for framing a separate issue whether the Will was forged or fabricated as contended by the defendant. The learned counsel for the petitioner contends that since the defendant contends that the Will is a forgery, the burden of proving that the Will is a forgery or fabricated is on the defendant. The contention is untenable. A contention that a Will is forged or fabricated has the effect of denying the genuineness and being fundamental to rule of evidence, the burden of establishing the genuineness is only on the plaintiff under Section 68 of Evidence Act. This will be so, even if there is no denial by the defendant. The denial of a Will as initiated by fraud, undue influence or coercion is wholly different, in which situation, the burden of proving such fraud shall be on the person who sets up a litigating circumstance. This difference in approach is exposited by the Supreme Court in the decision in Bharpur Singh v. Shamsher Singh (2009)3 SCC 687. The additional issue framed as 2-A is sufficient to cover the second one as well. I delete issue 2-B and sustain the order recasting the issue in the manner done for issue No.2-A.
2. With these directions, the civil revision is disposed of.
13th September, 2012 ( K. KANNAN ) Rajan JUDGE