Dear and learned Advocates of LCI ,
vanakkam.
I have an ongoing trial in a partition suit. An issue has has arisen- Two Wills need to be proved by the vendees/defendants 2-7 of the suit property having taken the whole of the suit property by sale from the vendor/1st defendant , a lady and wife of the elder brother of the 1st plaintiff. The vendor/D1 filed very elaborate written statement Her claims are that her father in law under the Will dated 16-04-1969 bequeathed e whole of the suit property to her husband /first son of the father-in-law Her husband by another Will dated 16-03-1989 bequeathed the same to her and she sold the suit property in six separate portions each by individual sale document to the vendees /Defendants 2-7.
The 1st plaintiff’s claim of common half share in the suit property is based on a release document executed and registered on 16-06-1945 whereunder the executant father released in favour of his two sons his common 1/3 right in the joint family properties placed in schedule ‘B’ of the release document and in consideration the two sons placed in the hands of the father and the mother an item of joint family property shown in ‘A’ schedule of the release document for enjoyment for their lives of father and mother without creating any encumbrances on the property and after the mother’s life enjoyment the property would devolve on both sons equally.
But the father wrote a Will on 16-04-1969 and registered the same whereunder the father bequeathed the whole of ‘A’ schedule property to his first son, husband of D1/Vendor, contrary to the terms of 1965 release document . The first son bequeathed the same property by his Will dated 16-03-1989 to his wife / D1 and died soon after registration of the Will. D1 in turn sold the property in 1993 to the vendess/D2-07 .
The plaintiff ignored the sales to D2-7 and fled the suit for partition and speared possession of the property based on the 16-061945 release statement The High Court however allowed the D2-7 to prove their title by proving the title of the vendor/D1.
How are the purchasers to prove the two wills in terms of law
Learned advocates kindly reply with your propositions in this regard with authorities. Any case law to show that where proving a Will is in issue, the propounder must first examine an attestor of the Will u/S68 of IEA?
That is, in this case- the vendees/D2-7 must first prove the two Wills by placing them in evidence in his oral chief to demonstrate that two wills are in existenceand then examine either of the two attestors of the Wills to overcome the bas u/S of Indian Eevidence Act that unless and unti an attesstor of both Wills are examined of due execution of the Wills, they can not be used as evidence .
How wold you propose that the two vWills can be proved by the D2-7 vendees?
Thank you sirs.
P.Padmanabhan , advocate at 08:56 PM IST on 6th july 2015
