S.101 Evidence Act | Defendant Can Lead Evidence Before Plaintiff In Suit To Prove Existence Of Will When Plaint Claims Otherwise: MP High Court

Justice Vivek Agarwal observed that in a case where the Plaintiff claims that a person died intestate whereas the Defendant argues the existence of a Will, the assertions put forth by the Plaintiff would be decided only after verifying if there is a Will in place or not-

After hearing learned counsel for the parties and going through the record, it is evident that Section 101 of the Evidence Act provides that "whoever 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." In the present case, defendants are relying on the registered Will of deceased-Laxman to claim title over the suit property whereas plaintiffs are claiming that defendants are respectively illegitimate child and concubine of Laxman, therefore, they have no right to the property. As per Hindu law of succession, issues asserted by the plaintiffs will come into play and inter se rights will be decided only when it is established that deceased-Laxman died intestate. If he had left a Will, then their rights and liabilities are subject to the proof of that Will.

Facts of the case were that the Appellants/Plaintiffs had instituted a suit against the Respondents/Defendants before the lower court seeking relief of declaration of title with regard to the suit property. They had also pleaded in their plaint that the suit property belonged to their Late father who died intestate and that the defendants had no right, title and interest in respect of the suit property.

Per contra, the Defendant had claimed that the Late father of the Plaintiffs had left a Will. Considering the said submission, the trial court passed an order, thereby directing the Defendants to lead evidence before the Plaintiff to prove the existence of the Will. Aggrieved, the Appellants preferred an appeal, arguing that they should have been given the opportunity to lead evidence before the Defendants.

Examining the submissions of parties and documents on record, the Court concurred with the rationale of letting the Defendants lead the evidence first. Referring to Hindu Law by Sir Dinshaw Fardunji Mulla, the Court pointed out the two rules with respect to burden of proof vis-à-vis a Will i.e.,-

i.Onus probandi lies upon the party propounding a Will, and that they must satisfy the conscience of the court that the instrument so propounded is the last Will of free and capable testator

ii.If a party writes or prepares a Will under which he takes a benefit, or if any other circumstances exist which excite the suspicion of the Court, and whatever there nature may be, it is for those who propound the Will to remove such suspicion, and to prove affirmatively that the successor knew and approved the contents of the Will and it is only where this is done that onus is thrown on those who oppose the Will to prove fraud or undue influence, or whatever they rely on to displace the case for proving the Will

Thus, the Court agreed with the reasoning of the court below and held that impugned order was neither illegal nor arbitrary-

Thus, when judgment of Hon'ble Supreme Court in Anil Rishi (supra) is examined, even in that judgment, it is held that ordinarily burden of proving a fact rests on party which substantially asserts the affirmative of the issue. When this aspect is considered, then defendants asserting their rights on the basis of the Will have been rightly asked to lead their evidence first, impugned order does not call for any interference.

With the aforesaid observations, the Court found it fit to not interfere in the impugned order and accordingly, the appeal was dismissed.

Case Title: SANJAY INGLE AND ANR. VERSUS PANCHFULA BAI AND ANR.

Case citation: 2022 LiveLaw (MP) 264

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