SHANTI DEVI versus DAROPTI DEVI AND ORS.

Citation: [2006] SUPP. 10 S.C.R. 1050 · Decided: 14-12-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Case Partly allowed

Judgment (excerpt)

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 of proof 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. 
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 
A 
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 

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