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CASE NO.: Appeal (civil)  5813 of 2006

PETITIONER: Shanti Devi                                                                     \005Appellan t

RESPONDENT: Daropti Devi & Ors.                                                     \005Respondents

DATE OF JUDGMENT: 14/12/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

[Arising out of SLP (Civil) No. 4127 of 2004]

S.B. SINHA , J :

       Leave granted.

       An 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.   

       The 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.

       Appellant 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)    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.

(b)     The costs of the suit be also awarded against the

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Defendants."           

       According to the appellant, the said suit was not maintainable.  It was  dismissed as such by an order dated 18.12.1981, holding :

       "The 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 suit.

       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 :

"18.    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.  

19.     As 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.

20.     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

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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 plaintiff.   

       It was submitted that having regard to the provisions of Order II Rule  2 of the Code of Civil Procedure, the suit itself was not maintainable.   

       In 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 :

"(1)    Whether the suit is not maintainable in the present          form ?  OPD

(2)     Whether the suit is barred as alleged in para 12 of          the written statement ?  OPD

(3)     Whether the suit property valued for the purpose of          court fee and jurisdiction ? OPP

(4)     Whether the Will dated 22.2.1977 is invalid as          alleged in the plaint ?  OPP

(5)     Whether the plaintiff is entitled for relief ?  OPP.

(6)     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.

       A bare 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.   Existence 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 of mind.   

       But 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,

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upon reframing the issue.  

       Only, 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 plaintiff.                                        In 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.

       For 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.