Jagmaninder Kaur vs Rajdip Kaur alias Nitu and Others

G.C. Garg, J.—This revision petition is directed against the order dated 11.12.1992 of Subordinate Judge, Ist Class, Chandigarh whereby an application dated 28.11.1992 moved by the plaintiff-petitioner seeking permission to adduce rebuttal evidence was declined.

Gurbachan Singh was the last male holder of the property in dispute. Plaintiff-Jagmaninder Kaur is his widow whereas Rajdip Kaur is the alleged adopted daughter of Gurbachan Singh died on 17.6.1988 at Chandigarh. He died issueless and only left behind the plaintiff as his widow. It seems that besides House No. 2227, Sector 21-C, Chandigarh, the deceased owned some agricultural land. Mutation of that land was sanctioned in favour of the defendant as she had alleged that deceased Gurbachan Singh bequeathed his property in her favour ignoring the plaintiff. This gave rise to a dispute between the widow and alleged adopted daughter. Jagmaninder Kaur thus filed a suit against defendant Raidip Kaur for permanent injunction restraining the latter from alienating, transferring or in any way dealing with the property of the deceased, on the basis of the alleged Will. The plaintiff also alleged that she was not aware of any Will having been executed by her late husband in favour of the defendant and the Will, if any, was not a valid testament and the defendant is not entitled to succeed to the property or any part thereof until the validity of the Will is determined by a court of competent jurisdiction.

The suit was resisted by the defendant by filing a written statement. The defendant claimed that she is the adopted daughter of late Gurbachan Singh and he bequeathed his property in her favour by a registered Will.

On the pleadings of the parties, trial court framed various issued. The plaintiff herself appeared in the witness box and did not examine any other witness. Her evidence was thus closed by order dated 8.10.1992. The defendant led her evidence thereafter. It was in this situation the plaintiff moved application, seeking to lead evidence in rebuttal, which application as already noticed, was dismissed by the trial court.

The trial court dismissed the application primarily after coming to the conclusion that the plaintiff did not challenge the Will specifically and it was her duty to challenge the Will in a court of competent jurisdiction. It also observed that the defendant is relying upon the Will executed by late Gurbachan Singh and she is not bound to prove its legality, it having not been challenged in a suit, and the grant of the application would tantamount to permitting the plaintiff to fill up a lacuna in the case and it will change the nature of the suit. It was further observed by the trial court that she is estopped from giving any evidence at this state by her own act and conduct without challenging the genuineness of the Will. It also observed that issues in the case were framed in May, 1990 and the plaintiff availed more than seven opportunities for her evidence but she never tried to challenge the genuineness of the Will and her evidence was closed by order.

On consideration of the matter, I am of the opinion that the entire approach of the trial court is erroneous. The plaintiff is undisputedly widow of deceased Gurbachan Singh. She is Class-I heir. The defendant claims to be the adopted daughter of Gurbachan Singh. She has further laid her claim to the property of Gurbachan Singh on the basis of registered Will executed in her favour. Once that is so, it is for the defendant to prove the due execution of the Will as contemplated by the provisions of Section 63 of the Indian Succession Act. It is for the propounder to prove not only the due execution of the Will but to also prove that it is free from all suspicions. Reference in that behalf be made to the judgment of the Supreme Court in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, . Once the onus to prove the Will is on the defendant, the plaintiff is certainly entitled to lead evidence in rebuttal. The approach of the trial court that it was for the plaintiff to challenge the Will and to lead evidence in the first instance, is not correct. Before the suit can be dismissed, the trial court is expected to return a finding as to whether the deceased Gurbachan Singh executed a valid Will in favour of the defendant. It may have to be further found as a fact that she was adopted by Gurbachan Singh. It was not for the plaintiff to plead that the Will has not been duly executed, or to challenge the same on any other ground. The plaintiff claims property on the basis of natural succession. She alone would succeed to the property of Gurbachan Singh as heir of Class-I under the Hindu Succession Act if it is found that the defendant is not the adopted daughter of Gurbachan Singh and he did not execute a valid Will in her (defendant''s) favour. Even if it is held that the defendant had been validly adopted as a daughter, she is still entitled to only half share of the property. Thus the irresistible conclusion is that the defendant is required to prove to the hilt that deceased Gurbachan Singh had executed a Will in her favour and the same was free all suspicions. In that view of the matter, the impugned order cannot be sustained.

For the reasons stated above, the revision petition is allowed and the order under revision is set aside and while allowing the application moved by the plaintiff, she is permitted to adduce rebuttal evidence both on the question of adoption and the validity and genuineness of the Will set up by the defendant-respondent. Since the passing of the final order was stayed by this court, the trial court is directed to dispose of the suit in accordance with law at a very early date. Parties through their counsel are directed to appear in the trial Court on 2.9.1998. The plaintiff shall have the costs of this petition which are assessed at Rs. 1,000/- payable by the defendant through a crossed demand draft favouring the plaintiff.