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2008 DIGILAW 243 (JK)

Bega Begum v. Gh. Ali

2008-06-05

SUNIL HALI

body2008
1. This revision petition seeks to challenge order dated 16-7-2007 passed by the learned Sub-Judge, Doda, whereby he has rejected the prayer of the petitioner for recasting of issues and placing the proof of burden on respondents No. 1 and 2. 2. The suit for declaration to the effect that the petitioner and proforma respondents 3 and 5 are owners in possession of land measuring 16 marlas and house constructed therein with the permanent prohibitory injunction restraining the defendants from interfering with suit property. 3. The respondents/defendants on the other hand, contested the suit of petitioner, on the ground that the said property was willed away by late Abdul Rehman Dev in their favour. It is further contended that late Abdul Rehman Dev had before his death divorced the petitioner and executed the divorce deed which was sent to the petitioner by post. 4. That the trial court after examining the pleadings of the parties framed 10 issues. For ready reference are quoted herein below:- 1. Whether the plaintiff is the widow of deceased Abdul Rehman Dev S/o Abdul Khaliq Dev R/o Malwana, Tehsil and District Doda ? O.P.P? 2. Whether proforma defendants i.e. defendants Nos. 3, 4 & 5 are adopted sons and daughter respectively of Abdul Rehman Dev S/o Abdul Khaliq Dev R/o Malwana Tehsil Doda ? O.P.P? 3. Whether the plaintiff alongwith proforma defendants No. 3, 4 & 5 is residing in a house situated under Survey No. 1734/10 min. which has been constructed jointly by the plaintiffs and the proforma defendants ? O.P.P? 4. Whether the plaintiff alongwith proforma defendants Nos. 3, 4, and 5 is the owner in possession of land comprising Khasra No. 1734/10 min. measuring 8 marlas and 1734/10 min. measuring 8 marlas total 16 marlas situated at Doda? O.P.P? 5. Whether the defendants Nos. 1 & 2 have jointly hatched a conspiracy and prepared a false and fabricated will on behalf of Abdul Rehman Dev S/o Abdul Khaliq Dev R/o Malwana, Tehsil and District Doda with the intention to grab the suit property owned and possessed by the plaintiff and proforma defendants? O.P.P 6. Whether the revenue entries regarding the land comprising Khasra No. 1734/10 min and 1734/10 min total 16 min are against the factual position and so are in operative and ineffective over the rights of plaintiff and proforma defendants? O.P.P 7. O.P.P 6. Whether the revenue entries regarding the land comprising Khasra No. 1734/10 min and 1734/10 min total 16 min are against the factual position and so are in operative and ineffective over the rights of plaintiff and proforma defendants? O.P.P 7. Whether the plaintiff stands divorced since 28th January 2000 and the plaintiff refused to receive the divorce deed when tendered by the Postman concerned? O.P.P. 8. Whether the plaintiff is the widow and proforma defendants Nos. 3, 4 and 5 are sons and daughter respectively of deceased Abdul Rehman Pallu R/o Bharat Tehsil and District Doda and are in possession of the estate left behind him? O.P.D. 9. If issue No. 4 is proved in affirmative, whether the defendants Nos. 1 & 2 are posing threats to plaintiffs and proforma defendants Nos. 3, 4 and 5 to disposes them from the suit property? O.P.P. 10. Relief. Onus on parties." 5. The parties lead evidence on the issues No. 1 & 10. The petitioner moved an application for recasting the issues and for shifting the burden on those issues to the defendants 1 & 2. The trial court after hearing the parties dismissed the application of the petitioner. The trial court dismissed the plea of the petitioner on the ground that the application for recasting the issues should have been filed before the trial had commenced. It is further observed by the trial court that the application has been made at a belated stage. 6. I have heard learned counsel for the parties and perused the record. The frame of the suit filed by the petitioner is based upon the fact that she was widow of the late Abdul Rehman Dev and was entitled to inherent the property in dispute. It was also contended in the plaint that proforma respondents 3 to 5 were children, born out of the first wedlock of the petitioner and entitled to the said property as they were adopted by Abdul Rehman Dev. On the other hand the respondents/defendants have stated that they have acquired rights to this property on the basis of Will which was executed by late Abdul Rehman Dev. The defendants 1 & 2 acknowledged that she was wife of the Abdul Rehman Dev but their stand was that the petitioner stood divorced for which the divorce deed was sent to her by her late husband by post. The defendants 1 & 2 acknowledged that she was wife of the Abdul Rehman Dev but their stand was that the petitioner stood divorced for which the divorce deed was sent to her by her late husband by post. They claimed to acquire the property based on the Will executed by the Abdul Rehman Dev. The controversy in the said suit is twofold. a) Whether the petitioner was divorced by her husband before the death and the said divorce deed was sent by her late husband through post. b) Whether the contesting defendants had acquired this property by virtue of a Will executed by late Abdul Rehman Dev. These are material prepositions which arise in the suit and are clearly issues of the fact. 7. All other issues raised and framed by the trial court do not touch the main controversy which arose in the present suit. The defendants after having conceded that the petitioner was legally wedded wife of late Abdul Rehman Dev had to prove that she stood divorced and the said divorce deed was served on the petitioner. The defendants have further contended in the written statement that the late Abdul Rehman Dev had executed the Will on 20-07-1999 in the presence of the witnesses. 8. Section 101 to 104 of Evidence Act deals with the burden of the proof. Section 101 of the Evidence Act reads: Whosoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. 9. That the existence of marriage was not denied but the fact that the petitioner stood divorced by a registered divorce deed was required to be proved by the defendants who have alleged this fact. 10. The factum of the Will having been executed by late Abdul Rehman Dev in favour of the defendants was required to be proved by them as proponders of the will. The plaintiff/petitioner had only raised suspicion with respect to the manner in which the Will was executed which would not ipso facto shift the burden on the petitioner to prove the existence of the will. The plaintiff/petitioner had only raised suspicion with respect to the manner in which the Will was executed which would not ipso facto shift the burden on the petitioner to prove the existence of the will. It is settled preposition of law that the person who is relying on the will has to prove the same. 11. In the present case the petitioner had stated that the defendants 1 and 2 had prepared false and fabricated will in respect of the suit property. Raising of this plea did not shift the onus on her. The execution of the will had to be proved by the proponders of the will. It was burden they had to discharge. In this respect I am fortified by the judgments of the Supreme Court reported in AIR 2007 SC 2219 and AIR 1977 SC 74. 12. Coming to the next question as to when an application for recasting/amending of issues can be filed before the court. Order 15 Rule 5 of CPC mandates that court can at any time before passing the decree entertain an application for recasting of issues. Such an application can be considered by the court. It is not in dispute that the party has to be vigilant in making such an application, moreso, when the trial has reached penultimate stage. It is also important that an application at the belated stage can also be filed, once it is revealed from the record that the issues have been wrongly framed and their burden has also being wrongly put on the party who is not required under law to prove that issue. 13. I therefore, set aside the order of the trial court, direct it to recast issues which emanate from the pleadings after taking into account sections 101 to 105 of the Evidence Act. The trial court is directed to recast the issues and place the burden on the defendants in light of directions given below:- The following issues may be framed by the trial court: 1. Whether the defendant has been divorced by her husband and the divorce deed has been served by post. O.P.D.? 2. Whether the late husband of the petitioner has executed will in favour of respondents No. 1 and 2. O.P.D. 14. However, I leave it open to the discretion of the court below to frame such issues after hearing the parties. 15. O.P.D.? 2. Whether the late husband of the petitioner has executed will in favour of respondents No. 1 and 2. O.P.D. 14. However, I leave it open to the discretion of the court below to frame such issues after hearing the parties. 15. The file be sent to the trial court where the parties are directed to appear on 4th July 2008.