Holding

The burden of proving a Will’s validity rests on the beneficiary, and the High Court should have remitted only the specific issue concerning the Will for fresh evidence, not the entire suit.

Summary

The appellant, Shanti Devi, claimed a Will executed by her mother in her favour and sought mutation of the property. Her sister, Daropti Devi, challenged the Will's validity, filing suits for perpetual injunction and declaration, both dismissed by the trial court. The Delhi High Court remitted the entire case to the trial court, holding that Issue 4 (validity of the Will) was wrongly framed and that the burden of proof had been placed on the appellant instead of the respondent, contrary to Section 63 of the Indian Succession Act. The Supreme Court held that the onus of proving a Will’s validity lies on the beneficiary and that the High Court should have remitted only the specific issue for fresh evidence, not the whole suit, directing remand under Order XI Rules 23/23A rather than Rule 25. Consequently, the appeal was partly allowed, the impugned judgment was modified to allow adduction of evidence on the Will’s validity, and the matter was to be returned to the appellate court without any order as to costs.

Issues considered

Who bears the burden of proof for the validity of a Will under Section 63 of the Indian Succession Act, 1925?
Whether the High Court could set aside findings on all issues and remand the entire suit to the trial court?
What is the correct procedure for remand under the Code of Civil Procedure, 1908 (Order XI Rules 23, 23A, 25)?
Do suspicious circumstances surrounding the execution of a Will affect its legal validity?

Legislation cited

Code of Civil Procedure, 1908s. Order XI Rule 23, s. Order XI Rule 23A, s. Order XI Rule 25
Indian Succession Act, 1925s. 218, s. 63

Subjects

Willburden of proofsuccessioncivil procedureremandOrder XIinjunctiondeclarationproperty dispute

Judgment

A SHANTI DEVI
v.
DAROPTI DEVI AND ORS.

DECEMBER 14, 2006

B [S.B. SINHA AND MARKANDEY KA TJU, JJ.]

Succession Act, 1925:

s. 63-0nus of proof to establish that Will was validly executed by the
C testator-Held: ls on beneficiary. .
Code of Civil Procedure, 1908:

Order Xll Rules 23 -& 23A or XL/ Rule 25-Framing!Reframing of
issues-Trial Court wrongly framed fourth issue whereby onus of proof of
D validity of Will was put on plaintiff and not beneficiary-defendant-Findings
on all the issues set aside by High Court and matter remitted in its entirety
to the Trial Court-Correctness of-Held, incorrect-High Court ought to
have remitted the matter only on the premise that the burden ofproof on Issue
No. 4 was wrongly placed and additional evidences were required to be
E adduced upon reframing the issue.

Respondent No.I and appellant are sisters. Their mother executed
a Will in favour of appellant. Appellant filed application for mutation of
her name. Aggrieved respondent filed a suit for perpetual injunction
which was dismissed. Respondent filed another.suit for declaration which
F was also dismissed. On appeal, High Court remitted the matter in its
entirety to the Trial Court holding that Trial Court wrongly framed issue
No.4 whereby onus of proof of validity of Will was put on respondent
instead of appellant beneficiary who was under legal obligation to prove
Will in terms of Section 63 of Indian Succession Act, 1925.

G In appeal to this Court, appellant contended that having regard to
the fact thaj_ the four issues were framed by the Trial Judge, the-High
Court could not have indirectly set aside the findings on all the i.ssues,
although it purported to have remitted the matter only on the premise
that the burden of proof on Issue No. 4 was wrongly placed on the plaintiff-
ll 1050
SHANTI DEVI v. DAROPTI DEVI 1051
respondent. A
Partly allowing the appeal, the Court

HELD: 1.1. A bare perusal of the plaint filed by Respondent No.I
~ould show that the validity and/or legality of the Will has been challenged
on a number of grounds; one of them being suspicious circumstances B
surrounding the execution of the Will. There cannot be any dispute with
regard to the proposition of law that the onus of proof to establish that
the Will was validly executed by the testator was on the person who was
a beneficiary thereunder. Existence of suspicious circumstances may not
lead to an inference that the Will was invalid in law, but would certainly C
be a relevant factor to arrive at a finding that the Will was not executed
by the testator in a sound and disposing state of mind. But the same by

... itself could not be a ground for remitting the entire suit to the Trial Judge
upon setting aside the decree of the Trial Court. The power of remand
vests in the Appellate Court either in terms of Order XLI Rules 23 & 23A
or XLI Rule 25 of the Code of Civil Procedure. Issue No. 4 was held to D
have been wrongly framed. Onus of proof was also wrongly placed and
only in that view of the matter the High Court thought it fit to remit it to
the Trial Judge permitting the parties to adduce fresh evidence. It,
therefore, required the Trial Judge to determine a question of fact, which
according to it was essential, upon reframing the issue. [1055-A-E)
E
1.2. Only, thus, additional evidences were required to be 'adduced
upon reframing the issue and having regard to the fact that onus of proof
was wrongly placed. In the aforementioned situation, it would have been
proper for the High Court not to remit the matter in its entirety, which
could have bee11 done by the court in exercise of its jurisdiction under F
Order XLI Rule 23 or Order XLI Rule 23A of the Code of Civil Procedure.
The impugned judgment must in the aforementioned situation be held to
have been passed in terms of Order XLI Rule 25 of the Code of Civil
Procedure. (1055-F-G)

CIVIL APPELLATE JURISDICTION: Civil Appeal No 5813 of2006. G

From the Final Judgment and Order dated 7.11.2003 of the High Court
of Delhi at New Delhi in R.F .A. No. 435 of 1992.

Ranjit Kumar, S.S. Ray and Rakhi Ray for the Appellant.
H
1052 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R. ·'
A R.P. Sharma for the Respondents.

The Judgment of the Court was delivered by

S.B. SINHA, J : Leave granted.

B An order of remand passed by a Division Bench of the Delhi High
Court dated 07 .11.2003 passed in R.F.A. No. 435 of 1992 is in appeal before
us.

The parti~s are sisters being the daughters of Shri Tara Chand Madan
and Smt. Budho Bai (since deceased). Tara Chand Madan died on 21.03.1954.
C Smt. Budho Bai executed a deed of sale in respect of the property bearing
No.16/26, Old Rajinder Nagar, New Delhi, by a registered deed dated
14.06.1965. She allegedly disowned Respondent No.I as her daughter. A
Will was executed by her on 22.02.1977, beneficiary whereof was said to be
the appellant. Smt. Budho Bai died on 20.04.1980.

D Appellant filed an application for mutation of her name. Respondent
filed a suit for perpetual injunction, which was marked as Civil Suit No. 308
of 1980, claiming, inter alia, for the following reliefs :

"(a) A decree for perpetual injunction restraining the Defendant No. 3
from dealing the said property in any manner whatsoever and
E from getting the said property No. 16/26, situated at Old Rajinder
Nagar, New Delhi, together with the lease hold rights of the land
thereunder admeasuring 85 sq. yds. Or thereabouts substituted/
transferred exclusively in her name to the exclusion of the Plaintiffs
from Defendents Nos. l & 2 on the basis of the alleged WILL
F dated 22.02.1977 and also restraining the Defendants l and 2
from enforcing or acting in any manner whatsoever on the basis
of the said alleged WILL dated 22.02.1977 and thereby transferring
and/or substituting the said property in favour of the Defendant
No. 3 to the exclusion of the Plaintiffs be passed in favour of the
Plaintiffs and against the Defendants.
G
(b) The costs of the suit be also awarded against the Defendants."
,>

According to the appellant, the said suit was not maintainable. It was
dismissed as such by an order dated 18.12.1981, holding:

"The allegations of the plaintiffs being out of possession have not
H
SHANTI DEVI v. DAROPTI DEVI [S.B. SINHA, J.] l 053

been denied and controverted with specifically and categorically in A
the corresponding paragraph of the replication to the written statement
of defendant no. 3 and the suit is not maintainable unless the plaintiffs
seek the remedy of possession in respect of their shares in the property
in dispute. I do not agree with the counsel of the plaintiff that
provisions of Section 31 are permissive."
B
The respondent filed another suit, which was marked as Suit No. 276
of 1992, for declaration and consequential relief. The said suit was also
dismissed being not maintainable being hit under Order II Rule 2 of the Code
of Civil Procedure. The learned judge, however, also dealt with the other
issues involved in the suit.
c
In the Appeal filed by the respondents, the High Court observed that
as the learned Trial Judge wrongly framed the issue and opined that the onus
of proof was on the plaintiffs and not on the defendant, the matter should be
remitted to the Trial Judge, stating :

"18. In the case in hand, we are of the view that the learned trial court D
did not frame Issue No. 4 in its true perspective. The onus to
prove Issue No. 4 ought to have been put on the respondent who
pleaded about the existence of the Will instead of being put on
the appellants and that too in negative. We fail to comprehend
as to how the appellants shall give proof of the non-existence of E
the Will. Respondent ought to have brought evidence on Issue
No. 4 and of course it was open to the appellants to cross-examine
the witnesses of the respondent on this issue to prove that the
Will on which the respondent was placing reliance was in fact
fictitious and not executed by Smt. Budho Bai. The appellants by
no stretch of imagination could lead evidence on this issue. F
Therefore, it seems to us that this issue was not correctly
adjudicated primarily because of the reason that onus to prove
this issue was erroneously put on the appellants instead of being
put on. the respondent who was under legal obligation to prove
this issue strictly in terms of Section 63 of the Indian Succession G
Act, the document in question being Will and its prove being
governed by Indian Succession Act, 1925.

19. As discussed above the appellant on whom the onus was to prove
Issue No. 4 did not adduce any evidence excepting the bald
H
1054 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A statement of PW I whereas, the respondent did not lead any
evidence as they thought that onus to prove this issue was on the
appellants and perhaps for these reasons, this issue could not be
determined in its true spirit.
20. Since Issue No. 4 is an important and material issue for
B determination of the rights of the parties, therefore, we deem it fit
and proper and fit that this issue be determined afresh after the
same is framed by the trial court in the affirmative as referred
above putting the onus to prove this issue on the respondent. The
trial court shall also look into the aspect as to the effect of the
will, it being not probated as provided under Section 218 of the
c Indian Succession Act."

Mr. Ranjit Kumar, the learned Senior Counsel appearing on behalf of
the appellant, would submit that having regard to the fact that the four issues
were framed by the learned Trial Judge, the High Court could not have
D indirectly set aside the findings on all the issues, although it purported to
have remitted the matter only on the premise that the learned Trial Judge was
.not correct in holding that the burden of proof on Issue No. 4 was on the
plaintiff.

It was submitted that having regard to the provisions of Order II Rule
E 2 of the Code of Civil Procedure, the suit itself was not maintainable.
In view of the order proposed to be passed by us, it may not be necessary
to arrive at a definite conclusion one way or the other on the said question.
The issues framed by the learned Trial Judge are as under :

"(I) Whether the suit is not maintainable in the present form ? OPD
F
(2) Whether the suit is barred as alleged in para 12 of the written
statement ? OPD
(3) Whether the suit property valued for the purpose of court fee and
. jurisc!iction ? OPP
G (4) Whether the Will dated 22.2.1977 is invalid as alleged in the
plaint? OPP
(5) Whether the plaintiff is entitled for relief ? OPP.

(6) Relief'
H
SHA~TI DEVI v. DAROPTI DEVI [S.B. SINHA, J.] 1055
The High Court, in our opinion, rightly opined that the merit of the A
matter revolved round the legality of the Will. It would also depend upon
:: ...
the nature of the property held by the father of the original parties.

A bare perusal of the plaint filed by Respondent No.I herein would
show that the validity and/or legality of the Will has been challenged on a
number of grounds; one of them being suspicious circumstances surrounding B
the execution of the Will purported to have been executed by Smt. Budho
Bai. There cannot be any dispute with regard to the proposition of law that
the onus of proof to establish that the Will was validly executed by the
testator was on the person who was a beneficiary thereunder. Existence of
suspicious circumstances may not lead to an inference that the Will was C
invalid in law, but would certainly be a relevant factor to arrive at a finding
that the Will was not executed by the testator in a sound and disposing state
of mind.

But the same by itself could not be a ground for remitting the entire suit
to the learned Trial Judge upon setting aside the decree of the learned Trial D
Court. The power of remand vests in the Appellate Court either in terms of
Order XU Rules 23 & 23A or XU Rule 25 of the Code of Civil Procedure.
Issue No. 4 was held to have been wrongly framed. Onus of proof was also
wrongly placed and only in that view of the matter the High Court thought
it fit to remit it to the learned Trial Judge permitting the parties to adduce
fresh evidence. It, therefore, required the learned Trial Judge to determine E
a question of fact, which according to it was essential, upon reframing the
issue.

Only, thus, additional evidences were required to be adduced upon
reframing the issue and having regard to the fact that onus of proof was F
wrongly placed on the plaintiff.

In the aforementioned situation, in our opinion, it would have been
proper for the High Court not to remit the matter in its entirety, which could
have been done by the court in exercise of its jurisdiction under Order XLI
Rule 23 or Order XU Rule 23A of the Code of Civil Procedure. The G
impugned judgment must in the aforementioned situation be held to have
been passed in terms of Order XU Rule 25 of the Code of Civil Procedure.

For the reasons aforementioned, the impugned judgment should be
directed to be modified. We, therefore, in modification of the impugned
H
1056 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A judgment, direct that the learned Trial Judge may allow the parties to adduce
evidenc.e, whereupon it shall return the evidence to the Appellate Court together
with its findings thereupon and reasons therefor within four months from the
date of communication of this order, whereupon the High Court may proceed
to determine the appeal on its own merit. The apj)eal is allowed to the
aforementioned extent. However, there-'shall be no order as to costs.
B
D.G. Appeal Partly allowed.

. r