CAPT. KUNAL KHAJURIA & ANR. vs MAJOR GENERAL SUDHIR MOHAN (RETD.) & ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 14th February, 2024
% Pronounced on:15th March, 2024

+ CS(OS) 219/2019 & I.As. 10321/2022, 6418/2023

CAPT. KUNAL KHAJURIA & ANR. ….. Plaintiffs
Through: Mr. Y.P. Narula, Sr. Advocate with Mr. Abhay Narula, Advocate.

versus

MAJOR GENERAL SUDHIR MOHAN (RETD.) & ORS.
….. Defendants
Through: Mr. Anupam Lal Das, Sr. Advocate with Mr. Ujjwal Jha, Mr. Anirudh Singh & Mr. Rohan Gupta, Advocates for D-2.
Mr. Rishi Sood & Mr. Gurjit Singh, Advocates for D-4

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T
NEENA BANSAL KRISHNA, J.

I.A. 11402/2023 (u/O XIII Rule 1 of CPC, 1908 by D-2)

I.A. 13406/2023 (u/S 151 of CPC, 1908 by D-2)

1. By way of I.A. 11402/2023, the applicant/defendant No. 2 seeks a direction to the non-applicant/plaintiff to lead his evidence first.
2. By way of I.A. 13406/2023, the applicant/defendant No. 2 seeks the recall of Order dated 10.5.2022 by way of which the applicant was directed to lead his evidence first.
3. Briefly stated, the Late Shri Narain Mohan was the sole and absolute owner of the property bearing No. D-230 Defence Colony , New Delhi (hereinafter referred to as the “suit property”). He had 2 daughters i.e. Late Lilleen Khajuria (represented by her son/plaintiff) and Nishi Mohan (defendant no. 3) and two sons i.e. Sudhir Mohan (defendant no. 1) and Ranbir Mohan (defendant no. 2).
4. The plaintiff has filed the present Suit for Partition, Permanent and Mandatory Injunction and for Possession of 1/4th share in the property bearing No. D-230 Defence Colony , New Delhi (hereinafter referred to as the “suit property”) left behind by her maternal grandfather late Shri Shyam Narain Mohan.
5. It is submitted in I.A. 11402/2023 by defendant No.2 that plaintiff in her plaint, has disputed the registered Will dated 03.0.1997 executed by the late Shri Shyam Narain Mohan stating it to have inherent defects and seeks partition on basis of intestate succession.
6. The following reliefs have been sought by way of present Suit which are as under: –
“a) A preliminary decree for partition be passed, declaring the shares of the parties in the property No. D-230, Defence Colony, New Delhi.

b) A Commissioner be appointed to suggest the modes of partition and in case the property cannot be divided by metes and bounds, “it may be ordered to be sold and the proceeds be divided in terms of preliminary decree.

c) Final decree be passed, putting the Plaintiffs in possession of the property as per their share and all necessary orders in this regard be passed in favour of the Plaintiffs and against the Defendants.

d) Pass a decree for Permanent Injunction against the Defendants from in any manner selling or transferring the property to any outsider, without the consent of all the co-owners.

e) A decree for mandatory injunction be passed against the Defendants Nos. 1 and 4 to produce all documents signed between them inter se or signed with any third party, i.e. Agreement to Sell, etc. relating to the said property, in this Hon’ble Court and on production, the same may be cancelled/destroyed.

ee) A decree for Mandatory Injunction be passed against the Defendants Nos. I and 4 to produce and file in this Hon’ble Court, the alleged Gift Deed dated 8.2.2019 and on production of the same it may be cancelled.

f) Cost of this suit be also awarded to the Plaintiffs.

g) Any other order or direction, which this Hon’ble Court may deem fit and necessary may also be passed in this case.”

7. The applicant/defendant No. 2 in his Written Statement took the stand of existence of the registered Will dated 03.09.1997 and further submitted that the property stood mutated in favour of the beneficiaries of the registered Will, almost ten years prior to the filing of the present Suit.
8. In view of the pleadings and the respective stand taken by the parties, the following issues were framed on 10.05.2022: –
“(i) Whether the Will dated dated 03.09.1997 is the last Will of late Sh. Shyam Narain Mohan and is genuine and valid, if so its effect? …… OPD 1,2 & 4

(ii) Whether gift deed dated 08.02.2019 executed by defendant No.1 in favour of defendant No.4 is valid and if so its effect? …… OPD 4

(iii) Whether the plaintiff are entitled to the decree of partition and mandatory injunction as prayed for? …… OPP

(iv) Relief.”

9. The defendants were directed to lead their evidence first to prove the existence of the registered Will dated 03.09.1997. The Court vide Order dated 10.05.2022 observed as under: –
“6. Since the onus of proof of the Will is on the defendant Nos. 1, 2 4, Defendant Nos. 1, 2 & 4 shall file their affidavit by way of evidence within four weeks.”

10. It is submitted that pursuant to the Orders of the Court, the defendant No. 2 filed the list of witnesses along with I.A. No. 10321/2022 seeking permission from the Court to call upon the attesting witnesses to the registered Will dated 03.09.1997, the Registrar concerned and other Officials of the MCD to prove the mutation of the property in favour of the applicant/defendant No. 2, in addition to filing the affidavit of evidence of the defendants.
11. The application for summoning of the witnesses was opposed by the plaintiff and the matter was referred before this Court by the Joint Registrar vide Order dated 01.09.2022. The plaintiff took the stand that the defendant No. 2 need not summon the Sub-Registrar to prove the Will, but the same can be produced by the defendant No. 2 himself, which is recorded in the Order dated 11.10.2022.
12. The defendant No. 2 had also moved an application No. I.A. 18455/2022 under Order XVIII Rule 3A of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC, 1908”) seeking the leave of this Court to examine the witnesses as submitted in I.A. No. 10321/2022 prior to his own examination. However, the same was dismissed vide Order dated 14.11.2022 on the ground that there was no case made out under the said provision of CPC, 1908.
13. It is submitted that when defendant No. 2 had sought to tender his affidavit, the same was objected to by the Ld. Senior Counsel on behalf of the plaintiff on the ground that the original Will dated 03.09.1997 produced by the defendant No. 2 cannot be allowed to be exhibited as it is only the attesting witness to the registered Will, who can exhibit the Will. The stand taken on behalf of the plaintiff was contrary to his earlier stand whereby he conceded that the Will can be produced by defendant No. 2.
14. Above circumstances have necessitated the filing of present Application under Order XVIII Rule 1 of CPC, 1908 in order to fix the onus to start trial, which always lies on the non-applicant/plaintiff. The averments in the plaint are only supported by the verification and affidavit attached and therefore, the plaintiff must be directed to open the evidence.
15. It is further submitted in the application that the mandate of Order XVIII Rule 1CPC is that primarily there has to first be admission of facts by the defendants. Secondly, in case of an admission, this provision only gives a right to the defendants to begin, but whether to exercise this right or not rests solely with the defendants.
16. In the present case, applicant/defendant No. 2 has denied the case of the plaintiff in toto. Thus the plaintiff has to first commence his evidence to discharge his burden of proof based on the averments in the Plaint. The defendants can only then be called to lead evidence, in rebuttal.
17. Furthermore, it is submitted that if the present application is not allowed, the plaintiff would get an opportunity to have a second bite at the cherry and grave injustice would be caused to the defendants. Hence, the prayer is made that the plaintiff be directed to leave the evidence first and only thereafter, the defendants may lead the evidence in rebuttal.
18. The plaintiff in his detailed Reply has submitted that the defendants Nos. 1 and 2 in their Written Statement, have propounded a registered Will dated 03.09.1997 of Late Shri S.N. Mohan to claim that they have become the owner of the portion of the suit property. The only defence to the present case of defendant Nos. 1 & 2 is the alleged Will and therefore, they have been directed to lead the evidence first. The Order dated 10.05.2022 has never been challenged.
19. Admittedly, the defendant Nos. 2 and 4 are in possession. It is submitted that all the objections are being taken on behalf of the defendant No. 2 to inordinately delay the trial since they are in possession of the property. Moreover, the application filed by the defendant No. 2 is not maintainable as he has already filed his Evidence by way of Affidavit.
20. It is also submitted that the defendant No. 2 had filed I.A. No. 18455/2022 under Order XVIII Rule 3A and Section 151 of CPC, 1908 for examination of the attesting witnesses and the Sub-Registrar for proving the alleged Will in question prior to his own evidence on the ground that the Will was required to be proved by the attesting witnesses first. However, it is the testimony of applicant/defendant No. 2 which should be recorded before recording the testimony of the attesting witnesses and the Sub-Registrar. This was an another attempt by the defendants to delay the trial and abuse the process of the Court. The application of the applicant/defendant No. 2 was dismissed by the Court vide detailed Judgment/Order dated 14.11.2022 and it was directed that the evidence of defendant Nos. 2 and 4 should be recorded first.
21. On 06.04.2023, while getting the evidence recorded, the counsel for the defendant No. 2 insisted on exhibiting the copy of the alleged Will by producing the original Will. It is submitted that this request is not sustainable firstly because the propounder cannot prove the Will as per the applicant’s own case and also in terms of Sections 67 and 68 of the Evidence Act, 1872 and Section 63(c) of the Indian Succession Act, 1925. The Will can only be proved by the attesting witnesses. The applicant/defendant No. 2, in fact, can only use the alleged Will for cross examination of the witnesses of the plaintiff as per Order XIII Rule 3A of CPC, 1908. The defendant No. 2 intends to exhibit the copy of the Will when there was no reference to the Will in the affidavit. Even if the original Will was on record, the same could have only been marked and not exhibited by the propounder in his examination-in-chief for which the reliance has been placed on the decision in N.C. Kaladharana vs. Kamaleshwaran & Ors, AIR 2000 Ker 354.
22. It is submitted that the application of the defendant No. 2 is without merit and the same has been filed to delay the proceedings and is liable to be dismissed.
23. The defendant No. 2 in his Rejoinder had reiterated his assertions as made in the present application.
24. An objection was taken by the plaintiff that in I.A. 11402/2023, while seeking directions for the plaintiff to lead evidence first, the applicant/defendant No. 2 failed to seek a recall of Order dated 10.05.2022 wherein the defendants were directed to lead their evidence first. In response to the objection, the applicant/defendant No. 2 filed I.A. 13406/2023 seeking recall of Order dated 10.05.2022 and both the applications are being decided together.
25. Submissions heard.
26. In the present case, the basic facts are admitted that the suit property was originally owned by late Shri Shyam Narain Mohan, grandfather of the parties who was survived by his two sons, Mr. Sudhir Mohan (defendant No. 1) and Mr. Ranbir Mohan (defendant No. 2) and two daughters, Ms. Lilleen Khajuria (mother of the plaintiff) and Ms. Nishi Mehta (defendant No. 3). These facts are not in dispute and the plaintiff has sought the partition on the basis of the suit property claiming to have devolved from his grandfather, Late Shri S.N. Mohan.
27. It is the defendant No. 2 who has sought to resist this claim of partition by propounding a Will dated 03.09.1997. Sans the Will, there is no challenge to the facts as pleaded in the plaint. Therefore, the defendant No. 2 was directed to lead their evidence first vide Order dated 10.05.2022.
Burden of Proof:
28. Pertinently, it may be mentioned that ‘burden of proof’ is a rule of evidence provided under Section 101 of the Indian Evidence Act, 1872 which reads as under-
“Section 101 Burden of proof.—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.

Illustrations

(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.

(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts.”
29. The concept of burden of proof has two facets; ‘burden of proof’ and ‘onus of proof’.
30. The meaning of the term ‘burden of proof’ was analysed in the case of Bhoora Singh vs State of Uttar Pradesh 1992 Cr LJ 2294. It was observed that the term envisages a situation where whoever desires a Court to give a judgment as to any legal right or liability by placing reliance on existence of certain facts, has to prove those facts as per his assertions. The Section is based on a Maxim ‘El Incumbit Probation Qul Dicit Non Quit Negat’ which means that the burden of proof rests on the party who asserts the affirmative of the issue and not on the party who denies it, as the negative is incapable of proof.
31. In Narayan Bhagwantrao vs. Gopal Vinayak,1960 SCR (1) 773 the Supreme Court explained that the two meanings of expression “burden of proof” envisage that when a party makes an allegation, they are required to prove the same for a judgement to be passed in their favour. If the said allegation is contested by the other party, then it becomes a contested issue for which they have to introduce evidence.
32. From a combined reading of the aforesaid cases, it is evident that the initial ‘Burden of Proof’ would lie on the non-applicant/ plaintiff. However, the applicant defendant No. 2 in the present case has introduced a new fact while contesting the assertions of the plaintiff i.e. Will dated 03.09.1997. This is where ‘onus of proof’ proof assumed significance.
Onus of proof:
33. The meaning of onus of proof was explained in the case of Anil Rishi vs Gurbaksh Singh (2006) 5 SCC 558. It was observed that the right to begin the evidence follows the principle of onus probundi and it assumes importance in the early stage of a case. The question of onus of proof assumes importance where the question is which party is to begin. While the Burden of Proof in Section 101Indian Evidence Act is always inflexible, the ‘onus of proof’ as defined under Section 102 Indian Evidence Act shifts when the initial burden stands discharged by the party.
34. Further, as per Order XVIII Rule 1 CPC the plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contents that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.
35. In the case of Desh Bandhu vs Harish Bindal, MANU/DE/0095/2000, it was observed that though Order XVIII Rule 1 CPC provides a right for the plaintiff to begin the evidence, it does not impose an obligation on the Court to ask the plaintiffs to begin first. It was held that depending upon the facts and circumstances of the case and the nature of the issues framed, the court can call upon either party to lead evidence first. Neither party can insist that the other one should be asked to lead it first. It all depends upon what the Court deems proper in the circumstances. Where it finds that defendant’s plea strikes of the root of the case, there would be no hitch in asking him/her to prove such plea first which can lead to disposal of the case. There can be no water tight compartmentalisation in matters of justice and all rules of procedure are designed and directed to achieve and secure ends of justice.
36. The shifting ‘Onus of Proof’ in the circumstances i.e. admission of a fact or introduction of additional facts by a defendant has been succinctly explained in the case of Krishnakumar vs V. Seethalakshmi, 2013 SCC OnLine Mad 83:
“8. In this case too, the burden of proof lies on the party, who asserts a particular fact. The particular fact, which is asserted is, whether the property belonged to Narayana Asari absolutely. That fact has been asserted by the plaintiffs and also admitted by the defendants. Therefore, there is no burden of proof on the plaintiffs to prove that fact. Insofar as the onus of proof is concerned, it is held in that judgment, referred to above, that onus of proof by a party would cease, the moment, the opposite party admits the transaction. In this case, the onus of proof is on the defendants to prove the execution of the Will, that has been denied by the plaintiffs. Once defendants are able to prove the Will to the satisfaction of the court, the suit filed by the plaintiffs will be dismissed and there is no necessity to go into the further aspects of the matter, by letting evidence by the plaintiffs. Considering all these aspects, the Court below initially directed the defendants to lead evidence first and that was properly appreciated, while considering the Review Application…”

37. By placing reliance on the aforesaid judgements, similar observations were made by this Court in Poonam Bhanot vs Virender Sharma, 2022 SCC OnLine Del 2156.
38. In the present case, since it is an admitted fact that late Shri Shyam Narain Mohan was the absolute owner of the suit property and parties to the present suit are his legal heirs, only defence taken against the claim for partition is the execution of the Will dated 03.09.1997. Since the factum of execution the said Will has been asserted by the defendant No. 2 for the first time, applying the above said principles, the primary onus lies on the applicant/defendant No. 2 to prove the Will. Only after positive evidence is led by the applicant/defendant No. 2, would the onus shift to the non-applicants/plaintiffs to rebut evidence. In case, the applicant/defendant No. 2 proves the execution of the Will, the suit of the plaintiff shall fail. On the contrary, if the applicant/defendant No. fails to prove the Will, no further evidence would be required to be led by non-applicant/plaintiff.
39. Further, the plea taken by the applicant/ defendant No. 2 that under Order XVIII Rule 1 of CPC, 1908, this Court cannot direct them to lead their evidence first as it is the defendant’s discretion alone to opt to begin. This contention is also not tenable in light of the findings in Desh Bandhu (supra). Thus, based on the defence taken by the applicant/defendant No. 2 in his Written Statement, this Court very well has the right to direct them to lead their evidence first.
Manner of proving Wills:
40. In the present case, the fact that the manner of proving of Will has also been questioned. While the defendant No. 2 commenced its evidence, an objection was taken with respect to marking the exhibit of the Will by applicant/defendant No. 2 in his evidence. Even though he had produced the original Will, an objection has been raised on the ground that only the attesting witnesses are entitled to prove the authenticity of the Will. This argument is completely bereft of any merit.
41. Section 63(c) of the Indian Succession Act, 1925 provides for the mode for execution of Will. While Section 68 of Indian Evidence Act, 1963 further provides the mode of proof of the Will and requires that at least one attesting witness to the Will must be examined.
42. Therefore, it is evident that there are two aspects of proving the Will. The one is to prove the document i.e., the Will itself and the second is to prove its authenticity which is done in terms of Indian Evidence Act according to the Section 68 of Indian Evidence Act, 1963.
43. Interestingly, in the present case, when the applicant/defendant No. 2 wanted to examine the attesting witness to the Will first. An objection was taken on behalf of the plaintiff that defendant No.2 must appear first as witness before examining his other witnesses. The applicant/defendant No. 2 thereafter stepped into the witness box, but again an objection has been taken that the Will cannot be exhibited by defendant No. 2 and only a mark can be put on this document.
44. In the case of Sait Tarajee Khimchand And Ors. vs Yelamarti Satyam Alias Satteyya, AIR 1971 SC 1865 it was held that the mere marking of an exhibit does not dispense with the proof of documents Further, this Court in Sudir Engineering Company vs Nitco Roadways Ltd, 1995 (34) DRJ 86 held that the marking of a document as an exhibit, be it in any manner whatsoever either by use of alphabets or by use of numbers, is only for the purpose of identification. While reading the record the parties and the Court should be able to know which was I he document before the winless when it was deposing. Absence of putting an endorsement for the purpose of identification no sooner a document is placed before a witness would cause serious confusion as one would be left simply guessing or wondering while was the document to which the witness was referring to which deposing. Endorsement of an exhibit number on a document has no relation with its proof. Neither the marking of an exhibit number can be postponed till the document has been held proved; nor the document can be held to have been proved merely because it has been marked as an exhibit.
45. Essentially for the convenience of identification of the documents which are prima facie validly tendered in evidence are marked as exhibit and those which are objected to, are indicated as mark. However, merely because of a document is exhibited on mark is no proof of its having been proved in accordance with law. Whether a document is a Mark or Exhibit, it is at the final stage that the Court would consider whether there is a valid proof or not of a document. Therefore, the objection taken by the non-applicant/plaintiff for exhibiting of the Will on production of the original Will was fallacious and without any basis.
46. In the light of the above discussion, it is held that the application of the applicant/defendant No. 2 for asking the plaintiffs to commence the evidence first, is without merit.
47. It is further held that the objections taken by the non-applicants/plaintiffs to the putting of exhibit mark on the Will on production of the original Will, is also without merit.
48. With these observations, the two applications are dismissed. Both the parties shall refrain from taking unwarranted objections and cooperate in expeditious recording of evidence.
CS(OS) 219/2019
49. The defendant No. 2 is directed to adduce his evidence before the Joint Registrar on 15.04.2024.

(NEENA BANSAL KRISHNA)
JUDGE
MARCH 15, 2024/S.Sharma

CS(OS) 219/2019 Page 14 of 14