Varsha Goyal v. Kailash Rani & Ors.

Present: Mr. T.P.Singh, Advocate, for the petitioner. Mr. Padam Jain, Advocate, for respondent Nos. 1 and 2. Alok Singh, J. Plaintiff-petitioner has assailed the order dated

20.11.2009 passed by learned Civil Judge (Junior Division), Patiala, whereby additional issues were directed to be framed. The brief facts of the present case are that plaintiff – petitioner has filed suit for the following reliefs:- C.R. No.1328 of 2010 2 “Suit for declaration to the effect that the plaintiff is the owner and in joint possession of the suit land mentioned in Sub Paragraph A,B,C,D,E,F,G,H, along with defendants No.1,3,4 & 5 in equal share and for further declaration that the alleged “Will” dated

06.01.2005 registered vide Vasika No. 156 dated

06.01.2005 before Joint Sub Registrar, Patran, is illegal, forged, null and void and has no effect on the rights of the plaintiff and has not been executed by Sh. Jagdish Rai Garg as such is liable to be ignored and for declaration to the effect that the alleged adoption deed dated 28.08.1991 registered at Vasika No. 103 dated 30.08.1991 before the Joint Sub Registrar, Samana, is also illegal, null and void and liable to be ignored and as such has no effect on the rights of the plaintiff and for further declaration that the plaintiff is entitled to 1/5 share from the Bank Accounts of Late Sh. Jagdish Rai Garg maintained by him in State Bank of Patiala, Modi College Branch, Patiala, State Bank of Patiala, Kauli Branch, State Bank of Patiala, Sirhindi Bazar, Patiala, Oriental Bank of Commerce, Budha Dal Branch, Patiala and Head Post Office, Patiala, other Banks, other Financial Institution and for Renditions of Account directing the Defendant No.1 & 2 to render the account of the amount received by them from M/s C.R. No.1328 of 2010 3 Multipurpose Cold Store Pvt. Ltd., Sanour Road, Patiala and from Banks and Head Post Office, and amount received from Life Insurance Corporation and other Financial Institutions and amount received for Gratuity and Provident Fund from the Government of Late Sh. Jagdish Rai Garg. And for permanent injunction restraining the defendant No. 1 and 2 their agents, servants, supporters, attorneys, etc. from alienating and transferring the suit property, the detail of which is given below in any manner whatsoever to any body and further restraining them from receiving the amount from the accounts of Late Jagdish Rai Garg.” In a suit, defendants – respondents No. 1 and 2 have filed their written statement and stated that defendant Nos. 1 and 2 are the only heirs entitled to inherit the estate of the deceased Jagdish Rai Garg pursuant to the Will dated

06.01.2005. Initially, learned Trial Court had framed the following issues:- “I. Whether the plaintiff is owner in joint possession of the suit land as detailed in the head-note of the plaint? OPP II. Whether the plaintiff is entitled to declaration as prayed for? OPP C.R. No.1328 of 2010 4 III. Whether the suit is not maintainable in the present form? OPD IV. Relief.” Plaintiff – petitioner has moved an application before the learned Trial Court under Order 14 Rule 5 CPC saying following additional issues should be framed:- “I. Whether Late Jagdish Rai Garg executed a Will dated 6.1.2005 in favour of the defendants No.1 and 2 if so its effect? OPD. II. Whether the defendant No.1 was adopted by Jagdish Rai Garg and Smt. Kailash Rani vide registered Wasika dt. 30.8.91, if so its effect? OPD III. Whether the plaintiff is entitled to permanent injunction? OPP” Learned Trial Court having heard learned Counsel for the parties vide impugned order directed to frame the following additional issues:- “I-A. Whether will dated 6.1.05 registered vide vasika No. 156 dated 6.1.05 is illegal, null and void? OPP 1-B Whether adoption deed dated 28.8.91 registered vide vasika No. 103 dated 30.8.91 is illegal, null and void? OPP 3-A. Whether the suit is within time limitation? OPP.” C.R. No.1328 of 2010 5 I have heard learned counsel for the parties and perused the record. Undisputedly, Sh. Jagdish Rai Garg was the owner of the property in dispute. Undisputedly, petitioner is daughter of Sh. Jagdish Rai Garg. Undisputedly, defendant no.2 is claiming himself to be adopted son of Sh. Jagdish Rai Garg. Undisputedly, defendant nos. 1 and 2 are claiming right of inheritance over the estate of Sh. Jagdish Rai Garg excluding the plaintiff on the basis of Will dated 06.01.2005. It is the settled position of law that party to the suit, claiming right of inheritance of the estate left by the deceased on the basis of Will allegedly executed by the deceased, is to prove the Will. In the opinion of this Court, additional issue No.1-A as reproduced herein above is not framed legally. In the opinion of this Court, burden to prove Will and to remove suspicious circumstances always lie on the person who is claiming right of inheritance pursuant to the Will. Hence, additional issue No.1-A should be casted in the following term:- “As to whether, Jagdish Rai Garg has executed any Will dated 06.01.2005 in favour of defendant Nos. 1 and 2.” Adoption deed dated 28.08.1991 is a registered document. Wife of Jagdish Rai Garg is also one of the C.R. No.1328 of 2010 6 defendant being respondent No.1 herein. There is a presumption under Section 16 of the Hindu Adoption and Maintenance Act pertaining to the registered adoption deed, hence, additional issue No.1-B seems to have been properly framed. Additional Issue No.3-A also seems to have been property framed because it is always for the plaintiff to prove that her claim is within time. For the reasons recorded herein above, present petition is allowed in part and additional issue No.1-A shall be in the form framed herein above by this Court. October 08, 2010 ( Alok Singh ) Judge