My father's self earned property was allotted to 4 sons equally and Rs.5000 as consideration amount to 4 sisters. Father executed a will and registered the same with 2 witnesses one from a advocate and another from a doctor in the year 1971 and he died in 1972. Mother predeceased him (1967) No time limit was fixed in the will to settle the consideration amount. My sisters demanded 5 times i.e. @Rs25000 per head and got a document with signatures from other sons except from me.In the year 1981 a case was filed by 3 sisters out of 4 sisters and got decree in the year 1991.The judgment got by 3 sisters was kept idle without any court proceedings till 12 years.Now one of my sister files a fresh case challenging the validity of will and claims 1/8th share in the property.The same party already filed a case in the same court and got remedy for the recovery of amount. Now she enters through backdoor with a false claim. Will it stand as per court of law? Challenging the will the proof of burden lies with the petitioner.Advise
1. There are many facets of the disoute which can aptly be dealt with only after seeing the contents of the cases.
2. Execution case become time barred after 12 years.
3.The subsequent suit on the basis of same cause of action and between the same parties is barred by law of res judicata.
4.The Will should have been Probated to avoid any future hassles out of it.
5. Even now it is not too late So apply for probate.
You ought to have applied for probate of father will on his demise
2) probate is judicial proof that will is genuine
3) if sister had filed suit and got decree in 1991 she should have filed for execution of decree to recover the decretal amount
4) in partition suit filed by sister take the defence that decree was passed in 1991 for Rs 25000 and she can claim said amount with interest
1. On what grounds has the will been challenged? The only two grounds for challenging a will are the incompetence of the testator and that it was not executed with his free consent, which has to be proved by the plaintiff.
2. If the will does not mention any time limit with respect to the payment of the consideration to sisters then will cannot be declared as illegal on this ground. The maximum which sisters can do is to file a suit for recovery of money.
3. Contest the case fittingly.
Probate of will is applicable to metropolitan cities like Delhi, Mumbai, Calcutta,and Chennai which I heard.My father's will was executed and registered in tiruchy town i.e.,one of the district of Chennai. Moreover 3 sisters filed a suit and it was decreed but they failed to take court proceedings till 12 years. So far the consideration was not paid by my brothers nor they claimed. Under the circumstances, is it legally stand which they demand 1/8th share in the property due to the reasons of failure of settlement of consideration amount? In the partition suit filed by me in the year 1987 which was decreed in 1999 i.e., in the judgment it was recorded so that 3 sisters filed case for recovery of amount admitting the will and a new document from my brothers for the increased amount was prepared and issued to them, thereafter they proceeded to court. If it so then the present demand is not justified at all. Once a lawsuit is decided the litigants are barred from raising the same issue again in the courts and they are also barred in raising another issue from the same claim or transaction. Is it so? By admitting non prima facie case in lower court can I get a stay order in high court to resist it? Explain
1) present demand of sisters is not justified
2) they have duly accepted the will and are entitled to only the decretal amount with interest
3) you should in your written statement oppose one eight share demanded by the sisters
1. Probate is mandatory in towns you mentioned, but this does not mean it cannot be filed in other towns.
2. It is not clear from your query as to what decree was passed in favour of your sisters. If the will was not challenged in the earlier suit then your sisters are free to challenge it now.
3. Consult a lawyer with complete case papers, without perusal of which it is not possible to advise.
Actually when they challenged the Will, you people should have filed a probate OP to get probate of will.
Even though it was a registered will, once there was a dispute against the will then the beneficiaries should have approached court for getting probate of will thereby there claim for an amount or any other matter could have been easily challenged.
Even now, since that sister who has already obtained a decree in the same matter but now she is filing another case suppressing the fact and the judgment in the previous case on the same matter, it is not maintainable.
You may file a petition under order VII rule 11 to reject the plaint because the res-judicata clause is operable. Hence her suit is not maintainable.
First of all you should understand that the probate of will is not mandatory in other cities, but it is not that you dont have to get probate of will at all.
The fresh suit filed by them is not maintainable for the reasons that they have approached court with a different relief on the same cause of action.
In fact it was the responsibility of you brothers to settle the amount decreed by court or at least you should have initiated some steps to settle the amount to them as per court order and not waiting for them to claim the same.
Once the court order was very clear then you cannot offer any excuse for the lapse on your side on this.
However you can initiate suitable legal action for rejecting the plaint by filing a petition under order VII rule 11.