CHAND KAUR AND OTHERS Vs. JIWI AND ANOTHER

JUDGEMENT

(1.) This is a civil revision directed against an order, dated 21st April 1967, of the Subordinate Judge Ist Class, Malerkotla, whereby he placed the burden of proving issue No. 1 on the petitioners. It arises out of these circumstances.

(2.) Mst. Jiwi, plaintiff-respondent, alleging herself to be the mother of Ujagar Singh deceased and thus a co-heir with the widow and daughters of the deceased, defendant-petitioners, made an application for partition of her share in the lands left by the deceased before the Revenue Officer, who stayed those proceedings on the ground that the question of her title had been raised and directed her to get the question of title decided by the civil Court. Consequently, Mst. Jiwi has instituted Suit No. 30 of 12th January, 1967 in the Court of the Subordinate Judge Ist Class, Malerkotla, for a declaration that she being the mother and heir of Ujagar Singh deceased, was owner of 1/5th share of the deceased. The defendant-petitioners denied the allegation of the plaintiff, submitting that the plaintiff being not the mother of the deceased, was not entitled to any share in his inheritance. The trial Court by means of impugned order, dated 21st April, 1967, inter alia framed this issue :-

(3.) It has been contended before me by the learned counsel for the petitioners that this wrong allocation of onus probandi on the defendants is not only contrary to the provisions of Sections 101, 102 and 103 of the Evidence Act, but is also likely to affect materially the result of the trial. Such an error, says the counsel is a material error of procedure, which warrants an interference by this Court in revision. In support of his contention, the learned counsel has referred to the observations of the Supreme Court in Ramchandra Ayyar and another v. Ramalingam Chettiar and another, 1963 AIR(SC) 302 and a dictum of Bhandari, C.J., in Union of India v. Shanti Devi and another,1957 PunLR 44.