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V.G.Rao Advocate (Advocate)     13 December 2009

who is to proove will?

Hi, all

"A" is the owner of a property covering 240 sq.yds, she had one son and three daughters out of her wed lock. during the life time of "A" she had let out 150 sq.yds of property to "X" and she sold 22 sq.yds to "B" who is another tenant. Subsequently she died, after her death her property devolved upon her three daughters and one son, Mr "X" who is tenant enterd in to the agreement of sale on a white paper with three daughters since they have got equal rights in the siad property, prior to the agreement of sale, Mr"X" used to pay monthly rents of Rs 300/- every month to "A" and subsequent to her death, and agreement of sale with three daughers as Her son being one of co-sharer received rents from Mr"X' and passed receipts in his name. While matter stood thus and having coming to know about the execution of sale agreement son of "A" created a "Will" puported to have been executed by "A", and sold 150 sq.yds of property which is under the possession of Mr"X" claiming the owner ship over the said property as a beneficiary under the said will, later on Mr"X" stopped paying rents to son of deceased "A"and filed suit for specific performance against the three daughers of deceased"A" making her son as one of the party to the said claim, wherein the three daughers have disputed the execution of "will" by their mother and supported the claim of Mr"X', however the son of "A" failed to proove the execution of will, later on the suit filed by Mr "X" is decreed partly directing defendants to execute the sale deed in his favor, upon the said judgment the son of "A" preferred appeal before the Hon'ble High court, which was allowed disbeleiving the agreement of sale enterd by the daughers of "A" though they admiited the agreement of sale with Mr"X", and also doubetd the execution of will, leaving the question whether "A": died intestate or testate, open, aggrevied by the said judgment MR "X" prefered appeal before Supreme court but same was  dismiised at  admission stage only, however since from the date of High court judgement the son of deceased "A" not filed any substantive suit to proove the execution of the will by his mother, as again matter stood thus"B" the purchaser of 150 sq.yds property under the occupation of Mr"X" through registerd sale deed from the son of "A" has filed eviction Rent controller case against MR"X" on the ground of "Will deafault in payment of rents to him for a period of 5 years, and on the ground of denial of title under the A.P buildings lease, rent, and eviction control act 1960, wherein the son of "A" was not made as a party. during the pendency of the siad R.C the two daughers of "A" died and another daughter of "A" bed ridden, taking adavantage of her health the son of "A" obtained signature of her on a blank stamp paper and fabricated and created a Decalration stating that his mother executed will in his favor and that her ealiar statement in written statement diputing the execution will is false and handed it over to "B", some time latter the son and surviving one daugher of "A"  died.

Intrestingly during the life time of Son "A"  he never bothered to proove the execution of the will by his mother in-spite of decision of High court by filing substantive suit claiming his owner ship rights accrued to him under the will over the 150 sq.yds of property which is under the occupation of MR"X".

In the rent controller proceedings Mr"X' disputed jural relation ship of land lord and tenant with the "B" and at any point of time he never paid rents to "B" and claimed the property under his occupation adverse against the true owner, and disputed the rights of son of "A" over the said property.

though the beneficiary or the legal heirs of "A" under the will failed to establish execution of the will by his/ their mother during their life time, the "B" who is third party examined witnesses under the will in Rent case and the court up held the will, and passed ordrers against Mr"X" dircting him to vacate the premises under his occupation, on the ground of denial of title of "B" and for wil ful dafault as there is attornment of tenancy by son of "A" in his favor.

My question is whether the said order of rent contoller is proper in the said circum stances?

Who is to proove the execution of will under the Indian succession act?

I would like to Know the exact meaning of "Propounder "of the Wlll"

can a third party to the will proove the execution of will by examining witnesses under the will in the absence of beneficiary or successors or legal heirs of the executant of the will? 



Learning

 7 Replies

N.K.Assumi (Advocate)     13 December 2009

Proof of  will must be strictly made by the attesting witness as per section 63 of the Indian succession Act 1925 and section 68 of the Evidence Act.

V.G.Rao Advocate (Advocate)     13 December 2009

 one of the attesting witnesses was examined by "B" who is a third party and purchaser from the beneficiary i.e Son of "A" as already submitted supra, please answer all my questions stated supra.

V.G.Rao Advocate (Advocate)     14 December 2009

Dear, I do agree that at least one witness needs to be examined to proove execution of will, but in my case neither the beneficiary i.e son of "A" nor her other successors during their life time prooved the execution will in any competent court of law in-spite of Hon'ble High court left the question "whether "A" died intestate or testate open"
It is "B" who is not a family member of executant of will has exmined one of attesting witness in rent case which is not an substantive case.
Now My question is can a third party though not a beneficiary under the will nor a family member or legal heir of executant "A" examine attesting witness to proove the genunity of the will?
expecting reply as early as possible as i need ur suggestion urgently

N.K.Assumi (Advocate)     15 December 2009

propounder means the benficiaries and the onus to prove the will lies on the propounder.

Raghav Sood (Lawyer)     19 December 2009

agree with Sh. N.k. Assumi in addition propounder are the persons who derive benefits from the will they have to prove the will in as per section 63 and the rigours are provided in sec 68 of evidnce Act

no third party has no locus standii to prove the will as he is not the beneficiary/propounder of the will

but if the thrid party  drives the estate by mode of succsion of the propounder  mentioned in the will and prounder is no more than the person who is representing the estate of the propounder steps into the shoes of propounder and thus has right to prove the will

V.G.Rao Advocate (Advocate)     19 December 2009

Thank U Raghav Sood, I had one more doubt does a Rent controller have Jurisction to decide the rights and title under the will to decide the title? if yes can u provide me any case laws under A.P Buildings(lease, rent, and Eviction) controll act 1960. In my opinion only Civil courts have Jurisdiction to decide the rights under the will is it not?

girishankar (manager)     12 January 2010

Dear Assumi,

Proof of  will must be strictly made by the attesting witness as per section 63 of the Indian succession Act 1925 and section 68 of the Evidence Act.

If its ignored in Court what do further


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