Devi Vs. Daropti Devi & Ors  Insc 956 (14 December 2006)
Sinha & Markandey Katju
out of SLP (Civil) No. 4127 of 2004] S.B. SINHA , J :
order of remand passed by a Division Bench of the Delhi High Court dated 07.11.2003 passed
in R.F.A. No. 435 of 1992 is in appeal before us.
parties are sisters being the daughters of Shri Tara Chand Madan and Smt. Budho
Bai (since deceased). Tara Chand Madan died on 21.03.1954. Smt. Budho Bai
executed a deed of sale in respect of the property bearing No.16/26, Old Rajinder
Nagar, New Delhi, by a registered deed dated
14.06.1965. She allegedly disowned Respondent No.1 as her daughter. A Will was
executed by her on 22.02.1977, beneficiary whereof was said to be the appellant.
Smt. Budho Bai died on 20.04.1980.
filed an application for mutation of her name. Respondent filed a suit for
perpetual injunction, which was marked as Civil Suit No. 308 of 1980, claiming,
inter alia, for the following reliefs :
A decree for perpetual injunction restraining the Defendant No. 3 from dealing
the said property in any manner whatsoever and from getting the said property
No. 16/26, situated at Old Rajinder Nagar, New Delhi, together with the lease
hold rights of the land thereunder admeasuring 85 sq. yds. Or thereabouts
substituted/transferred exclusively in her name to the exclusion of the
Plaintiffs from Defendentrs Nos. 1 & 2 on the basis of the alleged WILL
dated 22.02.1977 and also restraining the Defendants 1 and 2 from enforcing or
acting in any manner whatsoever on the basis of the said alleged WILL dated
22.02.1977 and thereby transferring and/or substituting the said property in favour
of the Defendant No. 3 to the exclusion of the Plaintiffs be passed in favour
of the Plaintiffs and against the Defendants.
The costs of the suit be also awarded against the Defendants." According
to the appellant, the said suit was not maintainable. It was dismissed as such
by an order dated 18.12.1981, holding :
allegations of the plaintiffs being out of possession have not been denied and controverted
with specifically and categorically in the corresponding paragraph of the
replication to the written statement of defendant no. 3 and the suit is not
maintainable unless the plaintiffs seek the remedy of possession in respect of
their shares in the property in dispute. I do not agree with the counsel of the
plaintiff that provisions of Section 31 are permissive." The respondent
filed another suit, which was marked as Suit No. 276 of 1992, for declaration
and consequential relief. The said suit was also dismissed being not
maintainable being hit under Order II Rule 2 of the Code of Civil Procedure.
The learned judge, however, also dealt with the other issues involved in the
Appeal filed by the respondents, the High Court observed that as the learned
Trial Judge wrongly framed the issue and opined that the onus of proof was on
the plaintiffs and not on the defendant, the matter should be remitted to the
Trial Judge, stating:
In the case in hand, we are of the view that the learned trial court did not
frame Issue No. 4 in its true perspective. The onus to prove Issue No. 4 ought
to have been put on the respondent who pleaded about the existence of the Will
instead of being put on the appellants and that too in negative. We fail to
comprehend as to how the appellants shall give proof of the non-existence of
the Will. Respondent ought to have brought evidence on Issue No. 4 and of
course it was open to the appellants to cross-examine the witnesses of the
respondent on this issue to prove that the Will on which the respondent was
placing reliance was in fact fictitious and not executed by Smt. Budho Bai. The
appellants by no stretch of imagination could lead evidence on this issue.
Therefore, it seems to us that this issue was not correctly adjudicated
primarily because of the reason that onus to prove this issue was erroneously
put on the appellants instead of being put on the respondent who was under
legal obligation to prove this issue strictly in terms of Section 63 of the
Indian Succession Act, the document in question being Will and its prove being
governed by Indian Succession Act, 1925.
discussed above the appellant on whom the onus was to prove Issue No. 4 did not
adduce any evidence excepting the bald statement of PW 1 whereas, the
respondent did not lead any evidence as they thought that onus to prove this
issue was on the appellants and perhaps for these reasons, this issue could not
be determined in its true spirit.
Since Issue No. 4 is an important and material issue for determination of the
rights of the parties, therefore, we deem it fit and proper and fit that this
issue be determined afresh after the same is framed by the trial court in the
affirmative as referred above putting the onus to prove this issue on the
respondent. The trial court shall also look into the aspect as to the effect of
the will, it being not probated as provided under Section 218 of the Indian
Succession Act." Mr. Ranjit Kumar, the learned Senior Counsel appearing on
behalf of the appellant, would submit that having regard to the fact that the
four issues were framed by the learned Trial Judge, the High Court could not
have indirectly set aside the findings on all the issues, although it purported
to have remitted the matter only on the premise that the learned Trial Judge
was not correct in holding that the burden of proof on Issue No. 4 was on the
submitted that having regard to the provisions of Order II Rule 2 of the Code
of Civil Procedure, the suit itself was not maintainable.
view of the order proposed to be passed by us, it may not be necessary to
arrive at a definite conclusion one way or the other on the said question. The
issues framed by the learned Trial Judge are as under:
Whether the suit is not maintainable in the present form ? OPD
Whether the suit is barred as alleged in para 12 of the written statement ? OPD
Whether the suit property valued for the purpose of court fee and jurisdiction
Whether the Will dated 22.2.1977 is invalid as alleged in the plaint ? OPP
Whether the plaintiff is entitled for relief ? OPP.
Relief" The High Court, in our opinion, rightly opined that the merit of
the matter revolved round the legality of the Will. It would also depend upon
the nature of the property held by the father of the original parties.
perusal of the plaint filed by Respondent No.1 herein would show that the
validity and/or legality of the Will has been challenged on a number of
grounds; one of them being suspicious circumstances surrounding the execution
of the Will purported to have been executed by Smt. Budho Bai. There cannot be
any dispute with regard to the proposition of law that the onus of proof to
establish that the Will was validly executed by the testator was on the person
who was a beneficiary thereunder.
of suspicious circumstances may not lead to an inference that the Will was
invalid in law, but would certainly be a relevant factor to arrive at a finding
that the Will was not executed by the testator in a sound and disposing state
the same by itself could not be a ground for remitting the entire suit to the
learned Trial Judge upon setting aside the decree of the learned Trial Court.
The power of remand vests in the Appellate Court either in terms of Order XLI
Rules 23 & 23A or XLI Rule 25 of the Code of Civil Procedure. Issue No. 4
was held to have been wrongly framed. Onus of proof was also wrongly placed and
only in that view of the matter the High Court thought it fit to remit it to
the learned Trial Judge permitting the parties to adduce fresh evidence. It,
therefore, required the learned Trial Judge to determine a question of fact,
which according to it was essential, upon reframing the issue.
thus, additional evidences were required to be adduced upon reframing the issue
and having regard to the fact that onus of proof was wrongly placed on the
aforementioned situation, in our opinion, it would have been proper for the
High Court not to remit the matter in its entirety, which could have been done
by the court in exercise of its jurisdiction under Order XLI Rule 23 or Order
XLI Rule 23A of the Code of Civil Procedure. The impugned judgment must in the
aforementioned situation be held to have been passed in terms of Order XLI Rule
25 of the Code of Civil Procedure.
the reasons aforementioned, the impugned judgment should be directed to be
modified. We, therefore, in modification of the impugned judgment, direct that
the learned Trial Judge may allow the parties to adduce evidence, whereupon it
shall return the evidence to the Appellate Court together with its findings
thereupon and reasons therefor within four months from the date of
communication of this order, whereupon the High Court may proceed to determine
the appeal on its own merit. The appeal is allowed to the aforementioned
extent. However, there shall be no order as to costs.