About WILL

Rajaram C Iyer (Querist) 31 May 2009 This query is : Resolved
Dear Ld Members,

I am appearing on behalf of Defendant. Brief facts of the case : Plaintiff and Defendant are cousins. Defendant's mother owned one plot measuring 200 sq.yards and there is one super structure in the said plot. The possession is with Defendant for than a decade. In the year June 1999 the mother of the defendant( as per the version of the plaintiff) executed a WILL giving 50% share to the defendant and Plaintiff. The mother of the defendant expried in July 1999.
Now the Plaintiff has filed a suit for declaration,partition, possession and interim/permanent injuction ( as there is some construction going on in the vacant portion.

Can I take the following objection/defence

1. Suit is barred by Limitation -Article 58 of the Limitation Act.
2. for permanent injunction Section 41(h) of the Specific Relief Act - When injunction not to be granted. When there is an equally and effacious remedy.

The Defendant is not aware of any such will executed by her late mother. The WILL has been signed by defendant's mother whereas she is an illetrate. We have a certified copy of one GPA executed by her in respect of another property to prove that the WILL is forged.

Now the question is can I move Order 7 rule 11 application taking the plea that the suit is time barred?

Can I get any supreme court/high court judgement relating to this dispute.

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B.B.R.Goud. (Expert) 31 May 2009
though the suit is timebarred by law of limitation, one need not to forego the property. only he can forego a right to move the court of law.
moreover the will is executable, with a legal procedure with the leave of the court.

Y V Vishweshwar Rao (Expert) 01 June 2009
You are disputing the Will Deed, its execution and the signature of mother on the Will deed , you can take all the objectiosn agaisnt the Will Deed. It is for the Plaintff/ who is relying on the Will Deed to to prove that the Will deed is genuine, valid & enforceable and that his suit is with in limitation and that he is entitreld for partition and spearate possession & Injunction and you can contest the case on the points mentioned above .