Step-by-Step Guide to Filing a Civil Suit in India

Dear Sir, Without seeing the pleadings of both the parties and evidence on record nobody can tell the result of the case. However, nobody can know the mentality of the judge who is going to pass a reasoned judgment on merits who is expert to deliver the judgment.

Dear Client, In testamentary succession, Probate of a will is necessary to transfer the deceased's property into the name of the beneficiaries. The persons named in the will to execute it are called its executors. Probate can be granted only to the executor of the will. Probate is conclusive proof that the will was executed validly, is genuine, and is the deceased’s last will. The executor of the will is required to file a petition and the original will to the competent Civil Court/District Court having territorial and pecuniary jurisdiction over the suit property for a grant of probate. In the petition, the executor has to mention the names and addresses of the deceased’s legal heirs so that notice can be issued to them. Next, the court calls for objections by issuing notice to the next of kin of the deceased to raise objections, if any, and also orders the publication of a citation of the probate petition on board to notify the general public. If there are no objections, then the Court grants the Probate/LOA to the executor who distributes the property to the beneficiaries as per the wishes expressed by the deceased owner in his Will. In the given situation, you may consult with an experienced Advocate who may guide you with tailored advice and steps.

Dear Client, In testamentary succession, Probate of a will is necessary to transfer the deceased's property into the name of the beneficiaries. The persons named in the will to execute it are called its executors. Probate can be granted only to the executor of the will. Probate is conclusive proof that the will was executed validly, is genuine, and is the deceased’s last will. The executor of the will is required to file a petition and the original will to the competent Civil Court/District Court having territorial and pecuniary jurisdiction over the suit property for a grant of probate. In the petition, the executor has to mention the names and addresses of the deceased’s legal heirs so that notice can be issued to them. Next, the court calls for objections by issuing notice to the next of kin of the deceased to raise objections, if any, and also orders the publication of a citation of the probate petition on board to notify the general public. If there are no objections, then the Court grants the Probate/LOA to the executor who distributes the property to the beneficiaries as per the wishes expressed by the deceased owner in his Will. In the given situation, you may consult with an experienced Advocate who may guide you with tailored advice and steps.

Dear Sir, Many Suits seeking the relief of partition even after limitation period of 12 years are running before the Trial Courts. Better file an application under Order 7 Rule 11 of CPC to reject the plaint on the ground of limitation as well as on other grounds as may be available to the Defendant/s.

Dear Client, From the prolonged contents of the query, it appears that the plaintiff had filed a partition suit and while a partition suit was pending, the defendant executed an unregistered Will, so the question arises as to how the testator/defendant executed a will without having a title on his share in the said undivided property. It is settled law that until and unless an undivided property is partitioned through a decree of the Court, the legal heirs/coparceners cannot be considered as the owners of his/her share in the property. Will means the legal declaration of the intention of the Testator with respect to his property, which he desires to be carried into effect after his death. In the case of testamentary succession, the wishes of the testator of the will shall prevail, whether the will is registered or not. The Supreme Court in the case of Saroja v. Santhil Kumar (2010) has held that an unregistered Will is valid and enforceable in law. A will, irrespective of whether it's handwritten or typewritten, on plain paper in clear language and witnessed by at least two persons, is legally valid. The time limit for challenging a will in India is generally up to 12 years following the testator's demise. However, legal heirs may potentially contest a will at any time because the Indian Succession Act of 1925 makes no mention of a deadline. The Supreme Court in the case of Kavita Kamra v. Pamela Mehta (AIR 2020 SC 2614) held that the unreliability of the attesting witnesses, the contradictions in their statements or if the major beneficiary played an active and major role in the execution of a will which would confer on them substantial benefit, it would give rise to suspicious circumstances and can be a ground of challenge. Even your query does not focus on any status of the partition suit that was filed before the execution of the Will by the defendant. It is also a questionable point as to what kind of certified copy of an unregistered will was filed by the defendant and the testator of the will to prove its veracity and authenticity when it was not challenged by the plaintiff, as per his admission before the Court. So, even if the plaintiff amended the plaint challenging the will, based on the admission/confession of the plaintiff, the Court may dismiss the case. Hence, while the contents of the query appear to be confusing, it is suggested to consult with an experienced Advocate for the tentative course of action, either based on the order of the Court or based on the status of the other pending suits related to property. Be informed that the final decision/order of the Court in any suit can never be anticipated or forecasted upfront, which solely depends upon the merit of each case/suit.