Will - Limitation - Law of limitation would not be attracted in cases where Will is relied upon by defendant as a defence in suit for partition.

Hindu Succession Act, 1956 Section 14 Limitation Act, 1963 Section 5

Will Family settlement - It is claimed that the plaintiff is well aware of the ownership of the property - Mother of plaintiff became absolute owner of suit property on basis of Will executed in her favour by her husband and property was mutated in her favour - No evidence brought on record to explain facts suppressed by plaintiff to her knowledge - Right to claim partition is a continuing right and limitation of 12 years commences only when adverse interest is claimed - Partition suit filed by sister against two brothers, who in turn contested her claim to property by relying upon a Will each, to claim division of property in the manner specified in respective Wills - Testimony of DW1 fully corroborated by DW3 who had scribed the Will and by attesting witness DW5 - No challenge to execution of Will has been brought forth - No unfair exclusion of plaintiff which could raise any suspicion - Evidence adduced by defendant coupled with surrounding circumstances proves that there are no surrounding suspicious circumstances and Will was validly executed by testatrix during her lifetime - Alleged second Will has been misread to assume that defendant 2 gets larger share in suit property - Defendant No. 2 has not been able to prove the Will and the Will propagated by the defendant is the last and genuine Will of testatrix - Plaintiff is not entitled to any share in suit property and entitled to sum of Rs. 15 lakhs from each defendant as her share in lieu of suit property while defendants are equal owners having 50% share each in suit property as per Will dated 27.12.2010.

Delhi High Court