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1 - 5 of 5 (0.22 seconds)Prem Singh vs Prakash Chand And Others ... on 21 September, 2016
8 A Division Bench of this Court in Prem Kumar and
others v. Parkash Chand and others, 2002(3) SLC 358, while
dealing with an identical issue, held that:-
H. Venkatachala Iyengar vs B. N. Thimmajamma & Others on 13 November, 1958
12 It is a settled principle of law that regardless of
the onus, which the parties are required to discharge, in a
case of Will, it is always the propounder thereof, who has to
establish its valid execution, in accordance with law. Hence
of
it did not matter as to whether the trial Court placed the
onus on the plaintiff or not, for what was required to be
rt
considered by the Court is as to whether the propounder
was able to discharge its burden, so cast upon him under
law, of proving the Will, to have been validly executed or
not. The position is no longer res integra as stands settled
by the apex Court in H. Venkatachala Iyengar vs. B. N.
Thimmajamma & others, AIR 1959 SC 443 and Niranjan
Umeshchandra Joshi vs. Mrudula Jyoti Rao & others, AIR
2007 SC 614: (2006) 13 SCC 433.
Niranjan Umeshchandra Joshi .. ... vs Mrudula Jyoti Rao & Ors. .. Respondents on 15 December, 2006
12 It is a settled principle of law that regardless of
the onus, which the parties are required to discharge, in a
case of Will, it is always the propounder thereof, who has to
establish its valid execution, in accordance with law. Hence
of
it did not matter as to whether the trial Court placed the
onus on the plaintiff or not, for what was required to be
rt
considered by the Court is as to whether the propounder
was able to discharge its burden, so cast upon him under
law, of proving the Will, to have been validly executed or
not. The position is no longer res integra as stands settled
by the apex Court in H. Venkatachala Iyengar vs. B. N.
Thimmajamma & others, AIR 1959 SC 443 and Niranjan
Umeshchandra Joshi vs. Mrudula Jyoti Rao & others, AIR
2007 SC 614: (2006) 13 SCC 433.
Jabbar Singh vs Shanti Swaroop on 23 October, 2006
(Emphasis supplied)
9 Lower appellate Court, rather than setting aside
the judgment and decree, without adjudicating the issues
on merit and remanding the matter for trial and
of
consideration of all issues, ought to have resorted to the
provisions of Order 41 Rule 25 of the Code of Civil
Procedure as stands clarified by the Apex Court in Jabbar
rt
Singh v. Shanti Swaroop, 2006 (3) SLC 58.
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