1. Order 1, Rule 10, (2) CPC gives that power to court. 2. If will is found genuine, even 2.1 to 2.3 will get share in accordance with the recitals in Will.

1. They can file a petition to transpose as plaintiff.  A defendant can be transposed as a plaintiff under the Code of Civil Procedure (CPC) through the powers granted in Order 1 Rule 10(2), which allows the court to transpose a party for a complete adjudication and to avoid multiplicity of proceedings.

2. No, that is just their averment hence the court will decide as per the issues framed.

transposition of parties, by pleading the court under Order I, Rule 10 of the Code of Civil Procedure (CPC). 

2) since the will is admitted to be false then  it is presumed that testator  has died intestate and all legal heirs will have share on property 

Yes through counterclaim or transposition defendant can act as plaintiff 

He can claim it through counterclaim or separate suit

Defendants 2.1 to 2.3 (the LRs of original Defendant #2) cannot automatically become plaintiffs simply because they have now switched sides. There is no provision in the Code of Civil Procedure that allows a defendant to convert into a plaintiff merely based on a compromise or a change of stand. The only situation where a party can be transposed from defendant to plaintiff is Order 1 Rule 10(2) CPC (Transposition), but the Court allows it only when such transposition is necessary for adjudication of the real dispute. It cannot be used when a defendant wants to defeat the original case or collude with plaintiffs. Courts usually reject such requests because transposition affects the structure of the pleadings and can prejudice other defendants. Therefore, Defendants 2.1–2.3 may apply under Order 1 Rule 10(2), but the Court is not bound to allow it. In fact, where defendants collude with plaintiffs to sabotage a Will already in trial, the court generally refuses the transposition.

If the Will has gone through proper proof under Section 68 of Evidence Act and Section 63 of Indian Succession Act, and attesting witnesses have proved it, then a registered Will that is duly proved cannot be nullified merely because some beneficiaries later change their stand. The opinion of legal heirs does not make a Will valid or invalid; only evidence does. Once the Will is proved, it becomes binding on all parties, including the LRs of Defendant #2.

If defendants 2.1–2.3 have filed an affidavit or compromise stating that the Will is bogus, after having initially accepted the share under the same Will, the Court will treat this as a contradictory stand. Courts apply the doctrine of “approbate and reprobate” (you cannot accept benefits and then reject the document). Courts also apply Section 116 of Evidence Act principles (tenant cannot deny landlord’s title; similarly, beneficiary cannot deny the Will once they take benefit). Therefore, even if the plaintiffs and Defendants 2.1–2.3 mutually sign a compromise, the Court will not accept a compromise that contradicts or destroys a legally proved Will. Any compromise that alters testamentary disposition is considered void unless all beneficiaries under the Will unanimously agree, which is clearly not the case here because Defendant #3 and others are objecting.

Defendants 2.1–2.3 cannot be denied their share because they changed their stand. If the Will gives them a share, the Court must decree according to the Will, provided it is proved. Court decisions are not based on who supports whom, but on the evidence of execution and attestation. Even if they file police complaints or claim threats, it does not affect the validity of a Will once the Court has accepted the attesting witness testimony and other formalities.

If Defendants 2.1–2.3 say the Will is bogus, that helps the plaintiffs but does not help them claim a bigger share. If the Will is declared invalid, the entire succession opens intestate and shares would be equal among heirs. If the Will is declared valid, they get only what is written in the Will. They cannot use “bogus Will” allegations to get a share under intestate succession while simultaneously benefiting from the Will. Courts do not allow this.

If the Will is already proved or is in process of being proved, the Court will pass a decree strictly based on the Will regardless of the last-minute compromise by Defendants 2.1–2.3. They may have damaged their credibility by claiming the Will is bogus after benefiting from it, but they cannot be punished by forfeiting their share unless there is a legal ground like fraud, coercion, forgery, or unless the Will itself says so (for example, a “no contest clause”, which is rare in India). Mere contradiction or collusion is not a ground for disinheritance.

Their compromise cannot override a Will. Their late objection has no value if the Will is properly proved. They will receive exactly the share the testator gave them—no more, no less.

If you need, I can also draft the objections you must file against their compromise, and the legal argument to prevent transposition under O1R10 CPC.If you wish to contact us, you may do so on https://qrco.de/syslaw

1. No, this is not permissible.

2. In a suit challenging the Will, the declaration on share can not be done by the court.

the remaining defendants can cross-examine the witness, and the witness can be declared hostile. The party who called the witness can request permission from the court to cross-examine them under Section 154 of the Indian Evidence Act, 1872. This is allowed when a witness changes their stand, contradicting their earlier statement. 

The additional facts you have provided significantly strengthen your case and weaken the credibility of Defendants 2.1–2.3 and the attesting witness who has now withdrawn support. I will answer each of your questions in detail so you can understand the legal position clearly.

Since Defendants 2.1–2.3 have now taken a contradictory stand compared to the written statement filed earlier by original Defendant #2, they can absolutely be cross-examined. When a party changes their stand midway during trial, the opposite party has a full right to cross-examine them on their new allegations, contradictions, and motives. This is done to expose collusion, inconsistency and bias.

The court ordinarily allows such cross-examination through an application under Section 165 of the Evidence Act read with inherent powers of the court. Since they are defendants on record, you can cross-examine them during their evidence or you can request the court to summon them for cross-examination if they file affidavits contradicting the Will.

Your lawyer must insist on this, because their change of stand can be exposed in cross-examination by confronting them with their earlier pleadings, admissions, and conduct. This will show the court that they are acting out of collusion and self-interest.

As regards the attesting witness who has now claimed that he was “forced to sign,” you can request the court to treat him as hostile. Section 154 of the Indian Evidence Act empowers the court to declare a witness as hostile when he deviates from his earlier statement, contradicts admitted facts, or acts adversely to the party calling him.

Once a witness is declared hostile, you can cross-examine him like an opposing witness and impeach his credibility using:

• his earlier signatures,

• his previous statements,

• surrounding circumstances,

• other evidence that proves the Will’s attestation.

The fact that he is the real brother of Defendant 2.1 makes his statement even more suspicious and the court is well aware of such tactics. His “forced signature” allegation has very little value unless proven with evidence, and courts do not accept such claims lightly, especially when the Will is registered and the attestation is otherwise proper.

Treating him as hostile is the correct legal remedy, and your counsel should make a formal request orally or through a simple application under Section 154 Evidence Act at the time of his testimony.

His hostile testimony does NOT destroy the Will if:

• the second attesting witness supports the Will, or

• the scribe supports the Will, or

• other surrounding circumstances support due execution.

A Will can be proved even without both attesting witnesses if one is unavailable or uncooperative, as long as execution and attestation are proved through other evidence (as per H. Venkatachala Iyengar v. B.N. Thimmajamma).

The law is very clear that turning hostile does not automatically invalidate a Will.

Defendants 2.1–2.3 will still get only the share given under the Will. Their changing stand cannot increase their share, and they cannot force intestate division by calling the Will bogus unless they prove massive fraud, which is impossible here because:

• the Will is registered,

• attesting witnesses originally supported it,

• testator’s reasons for not giving share to plaintiffs are written,

• defendants accepted the Will for years,

• they benefited under the Will,

• they are now contradicting themselves for convenience.

The doctrine of “approbate and reprobate” will apply—they cannot accept the benefit of the Will and then deny the Will. Their new stand is legally irrelevant unless the Will fails by proper evidence, which is not happening here.

Your immediate tasks are:

• file an objection against their compromise,

• oppose any attempt at transposition,

• move an application under Section 154 Evidence Act to declare the witness hostile,

• prepare for cross-examination of Defendants 2.1–2.3 to expose contradictions,

• press for the Will to be proved through other witnesses and circumstances.

If you want, I can also prepare the exact drafting for the hostile witness application, objections to transposition, and the cross-examination strategy.If you wish to contact us, you may do so on https://qrco.de/syslaw

Yes they can be crossed if required for the merits of your case

1. A defendant can be “turned into” a plaintiff only by transposition, and that too generally under Order XXIII Rule 1‑A read with Order I Rule 10 CPC, which applies when the original plaintiff withdraws or abandons the suit and the defendant has a substantial question to be decided against other defendants. If the plaintiffs are continuing with the suit and have not withdrawn/abandoned it, the court will normally not transpose Defendants 2.1–2.3 as plaintiffs just because they changed their stand or compromised with existing plaintiffs.​

2. If the will is ultimately held to be genuine and valid after due proof, any beneficiary who has challenged it as bogus or taken a stand contrary to the will can be denied the benefit flowing from that will and may have to work out rights, if any, under ordinary succession or not at all, depending on the court’s findings. Courts treat inconsistent or false pleadings, false criminal complaints and allegations such as “will is bogus” as conduct that seriously undermines the claimant’s credibility and can justify refusing discretionary or equitable relief in the final decree.​

3. Yes, the remaining defendants can seek permission to cross‑examine Defendants 2.1–2.3 once they enter the witness‑box, especially because their stand is now adverse to the common defence and they have allegedly made false allegations of threat etc. The court can allow such cross‑examination treating them effectively as adverse witnesses, and their earlier pleadings and statements can be put to them to prove contradictions.​

4. The attesting witness (brother of Defendant 2.1) can be treated as hostile if, after being summoned as your witness, he resiles from his earlier statement or supports the opposite side; in that situation, the party calling him can seek the court’s permission under Section 154 of the Indian Evidence Act to cross‑examine him as a hostile witness. Declaring him hostile does not remove his evidence from the record, but allows the court to rely on any truthful part that is corroborated and to disregard the rest while assessing whether the will stands proved as per Sections 63 of the Succession Act and 68 of the Evidence Act.

1.As Defendants 2.1 to 2.3 have taken a position which is inconsistent with the defence, the remaining defendants may request the Court to permit them to cross-examine them.

2. Such right is available under Sections 145, 154 and 155 of the Evidence Act, 1872, (corresponding sections in BSA may be referred to as 148, 157, 158)

The defendants have rights to cross other defendants if they don't sail together.

In the civil suit there is no question of defendant turning hostile witness, they can decide not to depose evidence itself if the situation warrants.

Dear Client, since Defendants 2.1–2.3 have already stepped into the shoes of Defendant 2 by substitution, they cannot automatically convert themselves into plaintiffs merely because they now support the plaintiffs; the proper legal route—if allowed at all—would be a transposition application under Order I Rule 10 CPC, subject to the Court’s discretion and only where their interest is aligned from the beginning, not after years of trial. Further, once a registered Will is proved valid by due probate-like evidentiary standards (attesting witnesses, testator’s soundness, execution proof etc.), beneficiaries who derive title under that Will cannot simultaneously attack it—their conduct amounts to approbate and reprobate, and the Court can deny them any benefit in the final decree on grounds of estoppel, waiver and hostile challenge to the source of title. Their compromise admitting the Will as bogus and filing false criminal complaints against co-beneficiaries can be treated as collusion and suppression of material facts, which strengthens your defence and can be used to argue that they have forfeited or abandoned their right under the Will. You should move for appropriate directions and seek costs/damages for malicious allegations as well. I hope this answer helps. For any more queries, do not hesitate to contact us.

1 No, without the consent of the Plaintiff and permission of the Court if is not possible. 

2. No, if the trial has already completed

- If the deceased defendant has already cross examined the Plaintiff then their legal heir will not get this opportunity.

- .Witness can become hostile if earlier he has not deposed before the Court.