No need to file counter of declaration of title 

Yes if your title is not established then you need to counter declare the same in said suit 

- As per law, only the last Will is valid , and hence the beneficiary mentioned in the said Will written in 2013 can claim the property. 

- Further, he can apply for probate of the said Will , if there is dispute 

- The said partition suit is not maintainable as there is a Will 2013 exist , and which is written in the presence of two attesting witnesses. 

There is always a risk of court rejecting the Will written in your favor in the probate case because the Will itself is a transfer of property by a testamentary disposition, therefore when the title is clearly established on the name of the named beneficiary, the  proposed title declaration counterclaim may back fire or draw an adverse inference too and chances of losing the case would become imminent. 

Is it required to file a counter declaration of title. Can not filings declaration of title can invalidate both the wills and grant partition.

Above suggestion is misconceived. 

Hello, 

1. At this stage of the case there's no requirement to file a counter claim for declaration of title as this would already have been on record as your defence on the strength of the Will of 2013.
2. Your proving the validity of the Will would justify the nutrition and your title. 
3. The advantage of seeking title declaration is to avoid any possible dispute in future, however in my opinion it is not necessary at this stage of the case. It will further delay the obvious.

Dear Client,

Please find below the solution to your query:

The counter-claim cannot be filed at such a belated stage. In 2019, Ashok Kumar Kalra v Wing Cdr. Surendra Agnihotri & Ors., in a Supreme Court judgment, the court held that the Court may permit the filing of a counter-claim after a written statement, till the stage of framing of issues. In exceptional circumstances, subsequent filing of counter claim may be permitted till the stage of commencement of recording of evidence on behalf of plaintiff.

However, in your case, you have even crossed the stage of recording evidence from plaintiff's side. Hence, if you file a counterclaim at this stage, the court will frown upon such action and will also incur more expenses and unnecessary efforts. There is no need to file any counter-claim

What is to be done now?

Mere registration of Ha will does not justify the legal validity of the will. I am hoping that the lawyer has informed you that as per the Supreme Court judgment (Leela & Ors. V. Muruganantham & Ors., Civil Appeal No. 7578 of 2023 )and Indian Laws, there are two requirements for validating the will:

1. The execution of the will under the Indian Succession Act, 1925 and proof of the will’s execution under the Indian Evidence Act, 1872. According to Section 63 of the Indian Succession Act, a will must be executed in the presence of at least two witnesses, and it must be signed by the testator (the person making the will) to show their intent.

2. Meanwhile, Section 68 of the Evidence Act establishes that the execution of a will must be proven by examining at least one of the attesting witnesses. This ensures that the will is a true reflection of the testator’s intent, free from coercion or external influence.

Now, you have to ensure that during your brother's cross-examination, the above requirements are fulfilled to strengthen your case. 

Conclusion:

The case is in your favour as it is not easy to invalidate the registered will. However, caution must be exercised as the plaintiff may bring any new material evidence, which may prompt the court to re-examine the evidence. Hence, the questions for cross-examination must be framed in a right manner.

Please contact me for further clarification or for assistance with the case.

No, failing to file a counter-claim for declaration of title does not automatically invalidate the Wills or entitle your brother to partition. However, filing a counter-claim at this stage may strengthen your position and clarify the nature of your defense.

What You Currently Have:

• A registered Will of 2013, which revokes the 2012 Will.

• The 2013 Will gives you absolute ownership of all properties.

• You are in possession; mutation and loans are also in your name.

• Your brother’s partition suit is based on the cancelled 2012 Will, and not on intestate succession.

• Is a Counter-Claim for Declaration of Title Mandatory?

No, it is not mandatory under the law. You can succeed in your defense by:

• Proving the 2013 Will is genuine, valid, and properly executed.

• Demonstrating that the 2012 Will was revoked by the 2013 Will.

• Establishing continuous possession and mutation in your name.

A declaration of title is usually filed by someone seeking positive relief. You are already in possession and in control of the properties, so you may not strictly need a declaration unless you:

• Want a clear judicial confirmation of title to prevent future litigation.

• Are unsure of how the court might interpret the Will alone without explicit prayer for declaration.

 Strategic Benefit of a Counter-Claim:

• If you file a counter-claim seeking declaration of title based on the 2013 Will, you shift the court’s focus toward affirming your rights, not just dismissing your brother’s claim.

• It lets you pursue affirmative relief, not just a defensive position.

• It allows you to claim costs or damages, if relevant.

Risk of Not Filing Counter-Claim:

• No automatic risk of invalidating both Wills.

• But, if you rely solely on defense and the court finds the 2013 Will not properly proved or defective (e.g., on execution, attestation, or suspicious circumstances), then the fallback could be either intestate succession or the 2012 Will, depending on how the evidence goes.

 Recommendations:

• If you have strong proof of the 2013 Will’s execution, especially the attesting witnesses (tenant and your wife), and medical records or proof of mental capacity, you can succeed in defense alone.

• However, if your lawyer recommends a counter-claim, consider it seriously — it can only strengthen your position by turning your defense into a proactive assertion of title.

In case you need my assistance in the matter I can be contacted on 

Regards,

YUGANSHU SHARMA

SYS LAW OFFICES