Balwinder Kaur vs Gulzar Singh and Others

K. Kannan, J.—The revision is against an order rejecting a prayer for withdrawal of a suit with liberty to file a fresh suit. The suit has been filed for declaration on the basis that the property is ancestral and for a relief of injunction. The defendant''s contention has been that the property is a separate property and the father, the first defendant has sold the property in favour of the third defendant. It appears that during the course of trial, the first defendant set up a Will said to have been executed to non-suit the plaintiff on the ground that the property was not ancestral and that it was a property bequeathed in his favour. It appears that the plaintiff filed an application for framing additional issues regarding Will, which was rejected. I cannot understand as to how the defendant could have been permitted to bring a plea regarding the Will which was not propounded in the written statement. It is a fundamental precept of law that the person that brings the Will shall prove the same and the burden of proof shall always be on the same person by virtue of Section 68 of the Indian Evidence Act, 1872. If the plaintiff had been taken by surprise at the trial and wanted to bring a fresh suit taking up appropriate pleas in the light of the defence disclosed during the trial that was not supported by pleadings, it should have been that the suit would have failed for the defect in the pleadings of not properly joining issues on the document propounded by the defendants in the course of trial. The petition for affording an opportunity to withdraw the suit and file a fresh suit on the same cause of action ought to have been granted.

The impugned order is set aside and the permission is granted in the manner sought for.