Will has to be proved by examining one of the attesting witness to the will
2) plaint has to be amended if you want to evict respondent and his wife
Suit for Declaration filed, and Will of Plantiff (died) submitted, whether it to be proved in court under 68 of Evidence Act
Father and Elder son Duo purchased Land in the name of Mother out of funds from their resources (salary) and constructed building on that plot. One of the son out of three ,Fraudulantly, by influencing mother got giftdeed of entire property in his and his wifes name.Mother died after 45 days of giftdeed under suspicious circumstances, BUT no evidence could be gathered. Suit for Declaration was filed by Father Elder son duo in which third son was made proforma respondent. Possession of two sets out of three is with father and son Duo. Respondent son and his wife (Donee) submitted reply that entire property was purchased by mother by selling her ornaments, but could not produce any documentary evidence.Meanwhile father died, his WILL, was submitted to the court, denying respondent son any part of property. All the sisters submitted affidavit supporting the claim of Father Elder son Duo,( thr. their Adv). who actually invested the entire funds not only for property but for their marriages also, in which no contribution was made by respondent(being youngest unemployed child).Now respondent son claims that gifted property belonged to mother hence father has no right to make a WILL, .Respondent son was not given any part of the property in WILL, by father, as he never honoured him and beaten him two three times. Case is at evidence stage, and relief for eviction/possesion of Respondent part was not made in original petition.Now question is :-1) Whether Amendment application under 6/17 is required to be filed, for eviction/possession of the portion of property in which respondent son and his wife(Donee) resides now.( out of three portions of the building respondents resides on first floor 3, BHK set.)2)WILL,needs to be proved or not, by producing one of attesting Witness as per evidence Act.3)Whether any other relief is to be sought.$)Any other advice in this matter
Asked 18 days ago in Property Law
Religion: Hindu
23 answers received from multiple lawyers
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23 Answers
In the suit for declaration you can ask for eviction and delivery of possession also.
You may file an amendment petition for getting the plaint amendment with the proposed amendment
If necessary you may file a probate petition for grant of probate to make it more authentic.
Dear Sir/Madam,
At this stage, is not favourable to file an application under order 6 rule 17 for eviction as the same may change the nature of suit and may not be allowed. Also, the proceedings would be delayed due to this. Further, it is suggested to prove the WILL during evidence and also use the statement of the sisters in favour of father and elder son duo. After the suit is decreed in favour of elder son, the younger son and his wife would be automatically evicted.
As per Proviso of Section 34 of Special relief Act,ie No court shall make any such declaration being able to seek further relief than a mere declarationof the title OMITS TO DO SO .Now amendment application needs to be filed as the relief for eviction/possession of respondents portion was not sought in declaration suit , during the life time of father, who died in June 23, by making a WILL IN 2021 not giving any part of suit property to respondent son.Now,Can we ask relief-1)RENT FOR THE PERIOD SINCE 1995,till date (during the period he was in possion of suit property), as mesne benefit, or after the death of father ie june 23 .2)Can we claim the court fee also which was around 3 lakhs.3) Immediate eviction and possession of suit property. In this connection SC Judgement3854 of 2014,date of judgement 13/2/2024 may be referred in which it was stated that althogh declaration for title of suit was confirmed but further relief was not sought hence decree for possession was not granted by court,hence the whole purpose of filing suit was defeated. 3)aNY OTHER RELIEF WHICH CAN BE CLAIMED AT THIS STAGE..Evidence of respondents completed, except Attesting witness of Will which was not in the list so far, and respondent has submitted his chief /stt. and yet to be crossexamind in next hearing.. Whether we have file amendment before that or after. Please advise by quoting Supreme court judgements.
Asked 17 days ago
You cannot seek Mense profits since 1995
2) as on date brother as per gift deed is absolute owner of property .unless gift deed is set aside by court how can you seek rents from 1995
3) you cannot claim court fees
4) seek eviction and possession of property
Dear Sir/Madam,
As suggested earlier, the amendment application will not only delay the process of suit but will also defeat the purpose. After the decree of declaration and handing over of possession to the elder son will solve the purpose in present circumstances. Presently, when the suit is at the stage of evidence, you are required to bring all relevant facts and developments are filing of the suit, i.e. WILL of father, illegal possession by younger son, fraud committed by them to have gift deed in thier favour etc. After the complete evidence of both side is over, file the detailed written argument outlining each and every aspect of the case. This will ensure you win and get desired decree.
You can file an amendment petition to seek additional relief of recovery of possession and not for arrears of rent or mesne profits or court fees
You can file the amendment petition at any time.
Petitioners witnesses have been completed, now Respondents crossexamination will start. Whether WILL can be proved before examining respondent witness or Before that Attestation witness of will should be produced to court.Which is better.
Asked 17 days ago
It should be proved before examining respondent witnesses
If you want to prove Will and like to mark it as your side documentary evidence or exhibit, then you have to file a petition to reopen and recall PW1, for this reason, along with the petition to receive additional documents and the cross examination of the respondent can be adjourned till then.
The court may not allow the petition to file Will as evidence after the respondent has been cross examined stating it as filling up lacuna.
Better file the petition now itself by following proper procedure of law
It means we to file Amendment petition ,praying for Proving WILL, and Relief for Eviction and possession of respondent portion /flat before his witness crossexamination.pl. Advise.
Asked 17 days ago
Make application for amendment of plaint and seek reliefs mentioned herein above
Dear Sir/Madam,
You may proceed with the prayer of proving WILL and bringing additional witnesses for the same, if the same has not been done earlier but don't file application for eviction and possession of resondent portion now. Rather, go with brain storming session with your advocate and during cross examination of respondent witnesses prove that the gift deed is forged and sham document.
If you want to amend your plaint at this stage for the said reasons and proposed amendments, you may have to do it before the defence witness is cross examined.
Matter again discussed with my Advocate. He is of the opinion that WILL, has been submitted just after the death of PETITIONER Father, and in crossexamination of Petitioner ,respondents advocate, did not challage the will, he only said the petitioner Father is not entitled ,as he is not the owner of property, therefore why we should prove the will when it is not challanged. For FILING 6/17 AMENDMENT HE AGREES.Now, question is-1) Whether will needs to be proved if it is not challanged during crossexamination.2) can it be challanged during hearing also, or stage foe challanging the will is over after cross examination.3) Any court judgement showing that WILL is to be proved evenif it is not challanged in the court.4) Mere asking the benefit of WILL in amendment petition serve the purpose, although respondent son was not given any part of suit property by father .5) Any other advise deemed fit.
Asked 16 days ago
1. Have you filed the Will as documentary evidence and whether it was marked as exhibit from your side, if not, since you rely upon this document as a supporting documentary evidence you may think about getting it listed as one of the documents from your side to defend your interest.
2. To prove the Will you need to obtain probate but not for adducing it as documentary evidence.
You have to prove the will as it is your case that as per father will you would be beneficiary of the property
burden of proof is upon Plaintifff to prove his case
If he didn’t challenge you can prove it as per the rule of evidence as per BSA
Dear Sir/Madan,
As regards to proving of WILL, your current advocate's opinion is very relevant.So, You need to prove the WILL because the same is not opposed. The facts which you wish to bring for 6/17 amendment application, you may prove the same in cross examination as well.
As the case is prolonged and we want to sell the land, but relations are not good at present.Before giftdeed which was done by respondents by deceiving the petitioners, relations were normal. Petioners wife have 4 bigha land jointly with respondents wife, in which one bigha cost was paid by respondents, wife in cash,as per registered document, ( Although cash was given by petioners wife as loan by withdrawing it from her bank Petioners wife have 4 bigha land jointly with respondents wife, in which one bigha cost was paid by respondents, wife in cash, rest was paid through cheque, whether---1) petioner needs to prove this during cross examination or 2) A separate case is required to be filed for division of land,ie how land can be can be sold ,what is to be done at the time of sale of land 3)Any other advise deemed proper. Land registery documents are with us.
Asked 9 days ago
You have to prove that payment was made
file suit for partition for division of land by metes and bounds
seek stay order restraining sale of land pending the hearing and final disposal of suit
1. The details of transactions are to be proved before court with substantial documentary evidences
2. During the pendency of a civil case in respect of this proeprty, you cannot sell the property.
3. You only have to confirm about any other relevant documents held in your possession or not
Cross-exam: No need to prove loan in current cross; it's a separate property matter.
Separate case: File partition suit for division & sale of 4 bigha land.
Sale: After partition decree, both parties can sell their respective shares. Registry documents will support ownership.
Yes separate case has to be filed for partition
Dear Sir/Madam,
Since the case is in evidence stage, you are sugested to do all the tricks to put and bring all possible facts during examination and cross examination of witnesses which were not brought earlier. This will bring the complete fact before the court and it will enable to court to decide the matter more appripriately. For sale deed of another land, another case may be filed appropriately.
You need to file amendment application before respondent’s cross-examination to seek eviction/possession, claim mesne profits from June 2023, to seek permanent injunction, and costs.
Will needs to be proved by one attesting witness.
Joint Land Issue: File a separate partition suit
The joint land (4 bighas) is separate from the suit property, and its division/sale requires independent action unless related to the suit’s subject matter. Proving the loan during the respondent’s cross-examination may weaken their claim but won’t resolve ownership.
