You Asked: In a partition suit of movable and immovable properties, if one of the defendants claim their right on the basis of an unregistered WILL in New Delhi and the plaintiffs, in their replication and other defendants, dispute the WILL by saying it is forged and fabricated? Q1. Can the partition suit decide the genuineness of the WILL by leading evidence on the same? Q2. The defendant who claims a WILL in his favor has to file a separate suit/probate petition to get the estate devolve in his name? Q3. The course of partition suit? Any judgements in support. Answer Please find your answer as under: Q1. Can the partition suit decide the genuineness of the will by leading evidence on the same? The suit for partition of the property can determine the rights of the parties qua the property. In such a suit even if a WILL is produced either by plaintiff or by the defendant to claim title over any portion of the property, the Civil Court will have to adjudicate about the title of the property, whether the WILL could be executed or not and whether any right was conferred by the WILL or not. However, they cannot prove the genuineness of the WILL and thus, to prove the genuineness of the WILL, probate petition has to be filed. Q2. The defendant who claims a WILL in his favor has to file a separate suit/probate petition to get the estate devolved in his name? The defendant who claims a WILL in his favor has to file a separate probate petition to prove the genuineness of the WILL. Q3. The course of partition suit? Any judgement in support. We can advise only when we examine the documents. Please refer to the judgement of Delhi High Court CM(M) 1441/2006 Ravi Khanna V/s Pankaj Khanna Date of Reserve: July 07,2008 Date of Order: August 26, 2008, T. Venkata Narayana and Others v. Venkata Subbamma and Ors. (1996) 4 SCC 457 and Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors. (1993) 2 SCC 507.
Posted on: Sun, 07 Dec 2014 11:21:01 +0000