ARMUGAM Vs. SHAKUNTLA

JUDGEMENT

(1.) Application was filed by the plaintiff before the trial court in IA 9 under O 14, R 5 r/w S.151, CPC in a suit filed for declaration to declare him as the owner/successor of the suit property on the death of his sister in law Dhanbagyammal and also for recovery of possession. The matter was contested by the defendants. As it transpires, there is also a Will. It is also stated that defendants claim to be the adopted children of Dhanbagyammal and also there was a Will executed by Dhanbagyammal in favour of 1st defendant. However, denying the same, suit was filed for declaration. On the other hand, written statement was filed by the defendants contending that there was a valid adoption and also there is a Will executed in their favour as such, they sought dismissal of the suit. The trial court framed five issues relating to declaration. However, plaintiff wanted to seek leave to raise the issue with regard to proof of adoption and also proof of Will. The contention of the respondents is, since it is pleaded in the plaint regarding denial of adoption and also the Will, burden is on the plaintiff and it is also not necessary specific issue is to be raised and seeking for a declaration covers everything. That is also the way in which the trial court disposed of the application filed stating that framing of separate issues by way of additional issues is not necessary. However, plaintiff aggrieved by the said order, is before this Court. Heard the counsel representing the parties.

(2.) Counsel for the respondents to stand by his contention to defend the order passed by the trial court, relied upon the Supreme Court decision in the case of Anil Rishi Vs Gurbaksh Singh, 2006 5 SCC 558to contend that burden is on the plaintiff since he raised an issue of denying the adoption and the Will and accordingly submitted, the onus is on the plaintiff and more over, such an issue is not necessary as the plaintiff sought for a declaration and since he has pleaded everything, it covers the issue and no specific issue needs to be raised with regard to the adoption and the Will.

(3.) Counsel for the petitioner/plaintiff submitted that he only asserted the fact stating the factual position but ultimately burden is on the defendants as they are asserting rights by way of adoption and Will and they are strangers to the family whereas plaintiff is the brother in law of the deceased Dhanbagyammal and defendants are in no way concerned except claiming possession without there being proof of valid adoption and duly executed Will.