BIBO DEVI Vs. RATTAN LAL

JUDGEMENT

(1.) The L. Rs. of the original plaintiff (Bulaqidass) are the appellants. Bulaqidass was one of the three sons of Joti Parshad, who died in 1918; the two other brothers of the plaintiff were Ballumal (who died in 1947) and Madho Parshad (who died in 1950) leaving no issue but only his widow Shanti DeVi, (who also died in 1956). The present suit was instituted by Bulaquidass with reference to the suit house in June, 1957 for effecting a partition and putting him in separate and exclusive possession of 2/3rd share on the footing that the plaintiff was in joint possession of the suit property along With defendants No. 1 and 2 (the sons of Ballumal). Bulaqidass died during the pendency of the suit after giving evidence and his L. Rs. were brought on record as supplementary plaintiffs; one of the sons of Bulaqidass (0m Prakash) was impleaded as a third defendant. A specific allegation was made in the plaint that even though the suit house had not been partitioned by metes and bounds for better and convenient enjoyment, the three brothers including the plaintiff started living in different portions of the house after the death of Joti Parshad. In the written statement filed by the second defendant the above-said allegation concerning joint possession was denied and a plea was taken that since the original plaintiff was not in joint possession of the suit property he had no locus standi to sue the persons who were in possession for partition. It was alleged that the property was the self-acquired property of Joti Parshad in respect of which he had executed a will on 17-2-1918 giving the same to his widow smt. Pato for her life-time and after her death exclusively to Ballumal (father of the second defendant) it was stated that the original will had been scribed by the late Munshi Abdul Wahab, (deed writer) and it was entered as Sr. No. 89 in his register. The photostat copy of the entry was submitted along with the written statement, alleging that the original will was "not traceable and has not been found" in spite of best efforts. It may be noticed that no mention was made about who had attested the said will. It was further contended that the plaintiff could not in any case claim more than one third share in the property.

(2.) In the replication which was filed by the plaintiff the execution of the will was denied and that the said claim of the defendant deserved no consideration in the absence of the original. It was also stated that the entire defence of the defendant, based on the said will, was destroyed and negatived by the mortgage executed by Ballu Mal (the alleged legatee) in regard to his one third share in the suit house in favour of Sri Ram by amortgage deed dated 1-1-1942 and that the second defendant had deliberately concealed the said mortgage from the Court in spite of the fact that he had knowledge of the same and was conscious that it cut at the very root of the defence based on the said will. It was further pleaded that in the municipal records also the names of the original plaintiff, Madho Parshad and Ballu Mal had been entered as owners of the suit house, which was inconsistent with Ballu Mal alone having become the sole owner of the house under the said will. The following issues were framed:-

(3.) The most important question for consideration in this appeal is whether the second defendant, on whom the onus probandi lay, has discharged it. There was no reference made to the will of the year 1918 prior to the filing of the written statement in the year 1957. Joti Parshad had died about 10 months subsequent to the execution of the alleged will and the same was not registered. No specific case was set up in the written statement that the will had been lost at any particular point of time. The particular words employed in this regard in the written statements have been extracted above and nothing more was said than that the will was not traceable in spite of best efforts by the second defendant. The evidence that was actually attempted at the trial was somewhat different. The second defendant, who was examined as D. W. 10, swore that the title deeds of the suit property including the sale deed of 1895 and the discharged mortgage executed in respect of it in 1912 along with the will of 1918 used to be kept by Ballumal in a safe in a shop situated at Fatehpuri, Delhi. The second defendant is now carrying on business at the same shop. The entire shop was looted and nothing remained there. He had not been able to find any of these documents in spite of search. It is interesting to note that these particular facts regarding the looting of the shop and the loss of documents during the course of such looting were not mentioned in the written statement.