vanakkam , respected lawyers in India.
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 by same from the vendor/1st defendant , a lady and wife of theelder 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 vendess /Defendants .
The 1st plaintiff 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 fo 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 item of 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 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 document. But when the trial opened- she never came forth to prove her averments in written statement. She and her legal heirs D8.9 and 10 chose to be ex parte .D2-7 were allowed by Court to prove their title by proving the title of the vendor. That is the D2-7 purchasers need to prove the two Wills of the years 1969 and 1989 aforesaid. How are the to prove them under law?
Learned advocates kindly out for the ur propositions in this regard with authorities. Any case law to show that where proving a Will is issue, the propounder must first examinean attestor of the Will u/S68 of IEA?
Thank you sirs.
P.Padmanabhan , advocate at 01:22 am ist on 30th june 2015