KEWAL KRISHAN (DECEASED) Vs. RAJ KISHAN

JUDGEMENT

(1.) CM No.17477-C-II of 2017

(2.) Perusal of the record would show that the plaintiff filed a suit for declaration and partition of properties belonging to late Vishnu Dutt and also challenged the Will dtd. 1/12/1998 being forged and fraudulent. The defendants in their written statement set up a counter claim and relied upon the same Will and sought possession of the properties which were in possession of the plaintiff. The issues were framed on 15/1/2013. Though no specific issue regarding validity of Will was framed, nor the same pressed by the plaintiff. Issue No.1 was framed to the following effect:-

(3.) The onus of aforesaid issue No.1 was on the plaintiff. The application for recasting of issues was dismissed on 13/8/2014. Perusal of the aforesaid issue would show that the plaintiff could succeed only after proving that the Will in question was forged and fabricated. Plaintiff could have led affirmative evidence in view of the stand taken by the defendants in the written statement, endorsing the validity of Will, rather the counter-claim set up by the defendants rested on the validity of Will. Since the plaintiff has not laid challenge to the Will, therefore, onus to prove the Will to be forged and fabricated was on the plaintiff. The evidence of the plaintiff as well as defendants have already been concluded.