Jaswant Singh Vs Sucha Singh and Others

K. Kannan, J.@mdashThe application had been filed for recasting the issue by the plaintiff when the defendant was denying the Will set up by the plaintiff as a forgery. The burden of proof shall always be on a person who propounds the same. The issues framed were: Whether Smt. Kartar Kaur executed a valid Will on 16.04.2008 in favour of Jaswant Singh defendant? and If above issue No. 1 is proved, whether the Will dated 16.04.2008 is forged and fabricated Will of Smt. Kartar Kaur? If there was an issue relating to the genuineness, there is no need for framing a separate issue whether the Will was forged or fabricated as contended by the defendant. The learned counsel for the petitioner contends that since the defendant contends that the Will is a forgery, the burden of proving that the Will is a forgery or fabricated is on the defendant. The contention is untenable. A contention that a Will is forged or fabricated has the effect of denying the genuineness and being fundamental to rule of evidence, the burden of establishing the genuineness is only on the plaintiff u/s 68 of Evidence Act. This will be so, even if there is no denial by the defendant. The denial of a Will as initiated by fraud, undue influence or coercion is wholly different, in which situation, the burden of proving such fraud shall be on the person who sets up a litigating circumstance. This difference in approach is exposited by the Supreme Court in the decision in Bharpur Singh and Others Vs. Shamsher Singh, . With these directions, the civil revision is disposed of.