Punjab and Haryana High Court recently held that The onus of proving the Will is, as per settled law, on the Person who is propounding/relying upon the said Will.
The judgement came out in a case titled as Maninder Pal Singh and others Versus Jasmeet Singh and others
Case Background
In the present case respondents No.1 to 4/plaintiffs has filed a suit for separate possession by partition of two properties which are detailed in headnote of the suit. And the petitioners/defendants No.1 to 4 are claiming their rights on the basis of Will dated 17.05.1979 stated to have been executed by Kaushalya Devi wife of Mela Singh in favour of defendants No.1 to 4. The trial Court vide order dated 07.01.2020 had framed 13 issues. Thereafter, vide order dated 18.01.2021, an additional issue was framed and it was directed that the defendants would lead their evidence qua the Will in the first instance and thereafter, the evidence of the plaintiffs shall be recorded.
The said order dated 18.01.2021 has not been challenged before this Court and thus, the specific direction given by the trial Court in the said order to the effect that the present petitioners would lead their evidence qua the Will in the first instance, was accepted by the petitioners and thus, they are estopped from raising the pleas raised before this Court.
It would be relevant to note that the present petitioners had filed an application for recalling the order dated 18.01.2021 but vide order dated 29.10.2021, the said application was dismissed. However, while dismissing the said application, inadvertently the trial Court had observed that the case was to come up for PWs.
Thereafter an application was filed by the plaintiffs/respondents No.1 to 4 under Sections 151 and 152 CPC seeking clarification of the direction given in the order dated 29.10.2021 to the effect that the case was fixed for PWs. The said application was allowed vide order dated 15.09.2022 by observing that the same was only an accidental slip and it was clarified that the evidence of the defendants was to be recorded before adverting to giving opportunity to the plaintiffs to lead the evidence.
The court observed that
It would be relevant to note that the said order dated 15.09.2022 has also not been challenged before this Court and thus, the petitioners are estopped from raising the pleas raised before this Court.
Thereafter vide order dated 23.11.2022 additional issue was framed on an application moved by defendants No.1 to 4 for framing of additional issues and in para 7 of the said order, it was observed that in view of the order dated 15.09.2022, the evidence of the defendants is to be recorded first. And the said order was challenged before the hon’ble high court.
The court held that
The facts stated hereinabove would clearly show that vide order dated 18.01.2021 as well as order dated 15.09.2022, the present petitioners were directed to record their evidence with respect to the Will in question in the first instance before the leading of evidence by the plaintiffs. Both the said orders have not been challenged in the present revision petition. It is a matter of settled law that the principle of constructive res judicata also applies to different stages in a proceedings. Once an order passed in a civil proceeding giving a specific direction/adjudicating an issue/point, is not challenged and is permitted to attain finality, then, on a subsequent stage it is not open to the party concerned to re-agitate the point/issue which has already been adjudicated.
The court further held that
The onus of proving the said Will is, as per settled law, on the petitioners/defendants No.1 to 4 who are propounding/relying upon the said Will. In the said circumstances, the directions given by the trial Court to the petitioners/defendants No.1 to 4 to lead evidence qua Will in the first instance is in accordance with law and deserves to be upheld. This Court in the judgment dated 20.09.2024 passed in CR-5453-2024 titled as “Ramesh Lakhanpal Vs. Neetu Sharma”, had observed that it is a matter of settled law that the Court is first required to see that the propounder of the Will has been able to prove its due execution, before other aspects raised by the opposite side, including forgery etc. is considered. And accordingly, the revision petition was dismissed
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