HARCHARAN SINGH HAZOORIA Vs. KULWANT SINGH HAZOORIA

JUDGEMENT

(1.) By this application under Order XIV Rule 15 CPC the plaintiff seeks deletion of issue No.9 and amendment of issue No.10 framed by this Court on 25th May, 2012.

(2.) The main contention of learned counsel for the plaintiff is that the Will dated 5th January, 1996 of late Smt. Jaswant Kaur i.e. the mother of plaintiff and defendantNo.1is not specifically denied by defendant No.1 in his written statement and hence the same is deemed to be admitted. Further in view of the admission made, the plaintiff is not required to prove the validity of the Will and thus issue No.9 is redundant and issue No.10 is required to be modified accordingly. Reference is made to Order VIII Rule 3, 4 and 5 CPC and Sections 58 and 68 of the Evidence Act. Reliance is placed on Balathandayutham and another v. Ezhilarasan, 2010 5 SCC 770, Thayyullathil Kunhikannan and others v. Thayyullathil Kalliani and others, 1990 AIR(Ker) 226 Rajan Suri and another v. State and another, 2006 AIR(Del) 148 R. Vellingiri and Gokila v. S R Kannaian and others (Appeal No.828 of 2007 decided by High Court of Madras on 5th September, 2007) and Kanwarjitsingh R Chadha v. Sahebrao Gajanan Salve and others (Apeal No.826 of 2013 decided by Bombay High Court on 4th July, 2013).

(3.) Learned counsel for the defendants No.1 and 3 on the other hand contends that the defendants have not admitted the Will and have used the words "alleged Will" in the written statement. Thus, there is no admission by the defendants. Alternatively even if this Court holds that the defendants have not denied the Will specifically is thus deemed to be admitted, the same is not a proof of genuineness of the Will which is required to be proved as per Section 68 of the Indian Evidence Act. Execution of the Will and genuineness of the Will are different matters and to base his claim on the alleged Will of late Smt. Jaswant Kaur, the plaintiff is required to prove that a genuine and valid Will was executed by her. Reliance is placed on S.R. Srinivasa and others v. S. Padmavathamma, 2010 5 SCC 274.