SMT. MURTHI Vs. BALWAN SINGH

JUDGEMENT

(1.) The son of the plaintiff through the 2nd husband brought himself as a party to prosecute the suit further, after the death of his mother. The contest was entered by the daughter-in-law born to the plaintiff through her first marriage. At the stage of impleadment, the son, through the 2nd husband, propounded a Will and claimed the property of the mother to have devolved on him. He has also brought witnesses in the course of trial for proof of the alleged Will. When the defendant has sought for permission to give evidence in respect of his plea disputing the Will, the Court has refused the permission on the ground that there is not even an issue regarding the Will. The person, who propounds a Will, shall always taken upon himself the burden of proof. The Will obtains a relevance, for, without it, the person, who is impleaded, cannot claim the whole of the property of the mother. On the plaintiffs death, the widow of the pre-deceased son through the 1st husband will also be a legal heir. To that extent definitely, the genuineness of the Will is relevant to predicate the extent of interest for which a joint possession is sought in suit. I find from the issues framed, the Court has not framed a specific issue regarding the Will propounded by the party, who was impleaded as a legal representative of the mother. I direct the following issue to be framed:--

(2.) On such an issue being framed, since it is contended that the plaintiff has already adduced evidence regarding the proof of the Will, the defendant/revision petitioner shall have a right rebuttal of evidence regarding the Will. The order impugned is modified and the civil revision is allowed to the above extent.