- (1.) THIS is a revision against the order dated December 5, 2013 passed by the Civil Judge (Junior Division), Bathinda declining the application filed under Order 14 Rule 5, CPC by the defendants, who are petitioners before this Court, praying for framing of additional issues and recasting them with reference to the Will dated October 20, 2010 executed by Gurcharan Singh @ Jhanda Singh. It transpires that the petitioners had preferred an application for framing additional issues in which it was prayed that an issue with respect to the validity of the will deserved to be framed. That application was allowed by the Additional Civil Judge (Senior Division) on May 1, 2013 and additional issues 3 -A and 3 -B were framed which stand incorporated in the following text: - "Additional issue No.3 -A: Whether the plaintiff has got no locus standi to file the suit? OPD 3 -B: Whether the plaintiff is estopped by her act and conduct to file the suit? OPD"
(2.) HOWEVER , no issue regarding the will dated October 20, 2010 executed by late Gurcharan Singh in favour of the defendants was framed by the court. The trial Court had then recorded that the plaintiff had made statement that it would have no objection if issue No.4 regarding will dated October 20, 2010 is framed but while passing the order dated May 1, 2013 additional issues were framed but not with respect to the will. There can be no doubt that the real controversy between the parties is verily the will dated October 20, 2010 set up by the defendants in defence of the suit is a moot point and if such an issue is not framed the real controversy will never be determined. If the will is itself the bone of contention between the parties litigating, I see no reason why it should not be framed and the burden of the issue placed on the defendants. After all, the plaintiff in her suit has challenged the will dated October 20, 2010 as illegal, null and void, fictitious and the result of fraud and, therefore, not binding on her rights to the suit property. The plaintiff claims to be sole legal heir of the deceased Gurcharan Singh @ Jhanda Singh. The will is registered and property has been mutated upon due sanction by the revenue authority. When both the parties are ad idem that the sole and real issue between them is the validity of the will then the petitioners are correct in asserting that the specific issue requires to be framed for a proper adjudication.
(3.) CONSEQUENTLY , the trial Court would framed issue No.4 to the effect : Whether late Gurcharan Singh @ Jhanda Singh s/o Ishar Singh executed valid Will dated 20.10.2010 in favour of defendants and plaintiff? OPD. This would especially be true when the plaintiff had no objection in case issue Nos.1, 2 and 4 as mentioned in the application by the defendants are framed. It would be open to the trial Court to re -examine proposed issues No.1 and 2 and whether they merit consideration for being struck. In the result, this petition is allowed. The impugned order dated December 5, 2013 is set aside. Directions in this order be carried out by framing issue with respect to the validity of the will. In case, any witness already examined is found necessary for recall then the trial Court would hear both the parties on this aspect by closely examining the depositions already made by the plaintiff witnesses since it is the plaintiff's case herself that the will is bad. I am sure this issue will be examined on the basis of materials already on record.;