ARJANDEV SINGH Vs. SUKHPAL SINGH

JUDGEMENT

(1.) THIS is a Civil Revision and has been directed against the order dated 8.12.1999, passed by the Additional Civil Judge, Sr. Division, Gurdaspur, who dismissed the application of the petitioners under Order 18 Rule 17-A C.P.C.

(2.) THE petitioners are defendant No. 5 to 7 before the trial Court. S/Shri Sukhpal Singh and Major Singh are the plaintiffs and they alleged themselves to be the minor sons of Shri Devinder Singh husband of Smt. Balwindar Kaur, defendant No. 1. They filed a suit for declaration in collusion with defendant No. 1 Smt. Balwinder Kumar that the suit land was the joint Hindu family co- parcenary property. They have challenged the Will executed by their father Shri Devinder Singh in favour of Smt. Balwinder Kaur. The present petitioners are the transferees from Smt. Balwinder Kaur and the case set up by them was that Smt. Balwinder Kaur was a beneficiary under the Will dated 1.10.1990. She had colluded with the plaintiff. Therefore, Smt. Balwinder Kaur did not appear in the suit and she was proceeded ex parte. The petitioners wanted that the Will dated 1.10.1990 should be proved on the record as the original Will dated 1.10.1990 was in the power and possession of Smt. Balwinder Kaur. Further the case set up by the petitioners is that they have been able to get the photo copy of the said Will from the mutation file of the estate of Devinder Singh in village Rania, District Gurdaspur and they want to prove the said Will by adducing additional evidence. They could not prove the Will inspite of due diligence when they were leading the evidence. The onus to prove the issue was upon the plaintiffs. The execution of the Will dated 1.10.1990 is very material and, therefore, the permission should be granted to them to prove the factum of the execution of the Will executed by Shri Devinder Singh in favour of Balwinder Kaur.

(3.) AFTER giving the contest before the trial Court, the learned Additional Civil Judge, Senior Division, Gurdaspur, vide impugned order dated 8.12.1999 and for the reasons given in para No. 4 of the impugned order, dismissed the application and para No. 4 of the impugned order is reproduced as under :-