SUNIL KUMAR Vs. RAM KUMAR AND OTHERS

JUDGEMENT

(1.) THE Will has been propounded by the defendants to jettison the rights of the plaintiffs to inherit property by natural succession. If the burden and onus remains on the propounder of the Will i.e. the defendants, onus cannot be fastened on the plaintiffs to prove the negative. The learned Civil Judge (Junior Division), Gurgaon by order dated 12th February, 2014 has declined the request of the plaintiffs to place the burden of the issue as to the validity and genuineness of the Will on the defendants. The trial Court has seriously erred in judging that the Will has to be questioned by the plaintiffs to prove its illegality and fraud alleged in its making. This reasoning to say the least is not sustainable in the eyes of law. This Court has no option but to set aside the order dated 12th February, 2014 by allowing this petition. The proposition of law of evidence raised in this petition is so rudimentary that it would serve no useful end or purpose to afford the defendants the empty formality of a hearing only to waste their time and money and the further precious time of this Court easily rationed for paying attention to other matters on its daily Board while transacting the unending business of the day.

(2.) THE onus of issue no. 1 has quite manifestly to be placed on the defendants since it is they who assert positively a departure from natural succession in defence of the suit based on intestate succession to immovable property. To sound trite, the burden of proof is a rule of reason. No one can prove or be compelled to prove the negative. You cannot claim that "miracles exist unless someone proves that they do not exist." You cannot claim that "souls exist unless someone proves that they do not exist." You cannot claim that "angels exist unless someone proves that they do not exist." You cannot claim that "deities exist unless someone proves that they do not exist." You cannot claim that testamentary Wills exist unless someone proves that they do not exist.