S.101 Evidence Act | Defendant Can Lead Evidence Before Plaintiff In Suit To Prove Existence Of Will When Plaint Claims Otherwise: MP High Court

The Madhya Pradesh High Court recently observed that a Defendant can lead evidence before the Plaintiff in a civil suit when they claim the existence of a Will, contrary to what is pleaded in the Plaint. Justice Vivek Agarwal observed that in a case where the Plaintiff claims that a person died intestate whereas the Defendant argues the existence of a Will, the assertions put forth by the Plaintiff would be decided only after verifying if there is a Will in place or not- After hearing learned counsel for the parties and going through the record, it is evident that Section 101 of the Evidence Act provides that "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. Considering the said submission, the trial court passed an order, thereby directing the Defendants to lead evidence before the Plaintiff to prove the existence of the Will. Referring to Hindu Law by Sir Dinshaw Fardunji Mulla, the Court pointed out the two rules with respect to burden of proof vis-à-vis a Will i.e.,- i.Onus probandi lies upon the party propounding a Will, and that they must satisfy the conscience of the court that the instrument so propounded is the last Will of free and capable testator ii.If a party writes or prepares a Will under which he takes a benefit, or if any other circumstances exist which excite the suspicion of the Court, and whatever there nature may be, it is for those who propound the Will to remove such suspicion, and to prove affirmatively that the successor knew and approved the contents of the Will and it is only where this is done that onus is thrown on those who oppose the Will to prove fraud or undue influence, or whatever they rely on to displace the case for proving the Will Thus, the Court agreed with the reasoning of the court below and held that impugned order was neither illegal nor arbitrary- Thus, when these rules of proving a Will are taken into consideration, then the order passed by learned Civil Judge when tested on the touchstone of the aforesaid rules cannot be said to be illegal or arbitrary because the defendants are staking their claim on the basis of a registered Will left by deceased-Laxman has to prove their Will first and then only plaintiffs can be asked to discharge their burden.