Probate In India: Definition, Importance & Application

  Probate In India: Definition, Importance & Application                        @1                        A will  is a document that is drawn by a person with clear instructions as to how his/her assets are to be distributed on their death. In certain situations — and only in certain jurisdictions, such as Mumbai, Kolkota and Chennai — the executor of the will may need to apply for a probate in order to legalise it. This article will discuss, in detail, what a probate is, when one is needed in India, what the court fees are, and how it can be obtained. @2 What is a Probate? The Indian Succession Act, 1925 decrees that a probate is official proof of a will. A probate is issued to the executor, or the person who is authorized to implement or execute the will and thereby adds a legal character to the will. A probate, as defined in the India Sucessession Act, 1925, is ‘A copy of will certified under the seal of a court of competent jurisdiction with grant of administration of the

Admission and Confession recording and use in evidence.

Admission and Confession

recording and use in evidence.
@1                  Introduction :- Admission plays a very important part in judicial proceedings. If one party to a suit or any other proceeding proves that the other party has admitted his case, the work of the court becomes easier. Admission has been dealt with in section 17 to 23 and 31. The intervening sections ie.24 to 30 are devoted to confession.
@2 Definition and meaning of Admission-
                                        As per Section 17 of Indian Evidence Act, An 'admission' is a statement, oral or documentary, or contained in electronic form which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances, hereinafter mentioned.
An 'admission' is a statement of fact which waives or dispenses with the production of evidence by conceding that the fact asserted by the opponent is true.
Admissions are admitted because the conduct of a party to a proceeding, in respect to the matter in dispute, whether by acts, speech or writing, which is clearly inconsistent with the truth of his contention, is a fact relevant to the issue.
Admissions are very weak kind of evidence and the court may rejects them if it is satisfied from other circumstances that they are untrue.(Rajapratap Bahadur Singh-Vs-Raja Rajgan Maharaja, 1977(3)-SCC-540).
In Thiru John-Vs-Returning officer, AIR-1977-SC-1724, Hon' Apex court observed that, admission as defined in section 17 to 20 and fulfilling the requirements of sec.21are substantive evidence.  
Propio vigore. An admission is the best evidence against the party making it and, though not conclusive, shifts the onus to the maker on the principle that what a party himself admits to be true may be reasonably presumed to be true so that until the presumption is rebutted the fact admitted must be taken to be true.
@3     To whom admission is made-
It is immaterial to whom an admission is made. The value of admission depends upon circumstances in which it is made and to whom it is made.(Rakesh Wadhawan-Vs-Jagdambha Industrial Corporation,AIR-2002-SC-2004). An admission made to a stranger is relevant. Admissions are as much binding on the Crown as ordinary persons.
@4 Distinction between Admission and Confession-
In English law term 'admission' is used in civil cases; whereas the term 'confession' is used in criminal cases as acknowledgment of guilt. This distinction is not maintained in the Evidence Act, and sec.17 to 22 are applicable to civil as well as criminal cases. Statements by the accused are admissions under sec.17 and 18, and prima facie evidence against the maker, but not in his favour.
The word 'confession' has not been defined anywhere. A 'confession' is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime. Statement is a genus, admission is the species and confession is the sub-species. A confession, therefore, is a statement made by an accused admitting his guilt. 
 (Sahoo-Vs-State of U.P. AIR-1966-SC-40). When a party accepts his statement made in earlier proceedings, it amounts to admission.
@5 Admissions in criminal proceedings
Every admission made by an accused person is not, in the view of the law, a confession, nor can it be held that admissions mean only statements made by parties to civil proceedings, and do not include statements made by parties in criminal proceedings. Every statement, oral or documentary, which suggests any inferences as to any fact in issue or relevant fact made by an accused person is an admission under sec. 17 and 18, and under sec. 19 an admission may be proved as against the person who makes it unless, under some provision of the Evidence Act or other law, it is rendered inadmissible.
Under sec. 24 to 26 statements made by accused persons are inadmissible, subject to the provisions of sec. 27 to 29, when such statements are confessions. A confession which is inadmissible may yet for other purposes be admissible as an admission under sec. 18 against the person who makes it in civil matters. Thus, admission of guilt by a person to a police officer, though not receivable in evidence in a criminal trial, may be proved in civil proceedings as an admission under this section and sec. 18 and 21.
@6 .Admissions in publication -
The court said that statements made in a book, though cannot be regarded as conclusive admissions, they can be taken as an additional circumstances along with the other circumstances for determining whether the conduct of the party amounted to waiver and/or abandonment of the right in respect of the articles in question.(Karan Singh-Vs-State of J.& K., 2004(5)-SCC-698).
@7 .Oral or documentary - Judicial or Extra-judicial Admissions - Admissions may be oral or contained in documents, e.g., letter, depositions, affidavits, plaints, written statements, deeds, receipts, horoscopes. Admissions in pleadings are judicial admissions. They can be made the foundation of rights.
@8 .Persons whose admissions are relevant-
List of persons whose admissions are relevant is to be found in the provisions of section 18 to 20. Admissions made by any other persons are not receivable in evidence.
@9. Persons by whom an admission must be made-
Sections 18 and 19 indicate the persons by whom an admission must be made. Section 18 lays down five classes of persons who can make admissions-
(1) Party to the Proceeding.
(2) Agent authorized by such party.
(3)Party suing or sued in a representative character making admissions while holding such character.
(4)Person who has any proprietary or pecuniary interest in the subject-matter of the proceeding during the continuance of such interest.
(5)Person from whom the parties to the suit have derived their interest in the subject-matter of the suit during the continuance of such interest.
@10. Section 19- Admission by persons whose position must be proved as against party to suit-
Object-The object of this section is not to lay down that certain statements are relevant or admissible but merely to add to the category of persons by whom a statement may be made before it can be considered to be an admission within the terms of the Act.
Principle-This section forms an exception to the rule that statements made by strangers to a proceeding are not admissible as against the parties.
@11 ,Section 20- Admissions by persons expressly referred to by party to suit-
Statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions. This section forms another exception to the rule that admissions by strangers to a suit are not relevant. Under it the admissions of a third person are also receivable in evidence against, and have frequently been held to be in fact binding upon, the party who has expressly referred another to him for information in regard to an uncertain or disputed matter.
@12. Section 21-Proof of admissions against persons making them and by or on their behalf-
This section lays down as a general rule that admissions are relevant and may be proved against the person who makes them or his representative in interest. but they cannot be proved by or on be half of the person who makes them or by his representative in interest, except in the following cases :-
(1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under section 32.
(2) An admission may be proved by or on behalf of the person making it, when it consists of a statements of the existence of any state of mind of body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accomplice by conduct rendering its falsehood improbable.
(3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission.
The principle laid down in this section must be taken subject to sec. 24, 25 and 26 of this Act and sec. 164 and 201 of the Criminal Procedure Code. A confessions made to a Magistrate but not recorded by him, under sec. 164 of the Code of Criminal Procedure, cannot be proved by tendering the oral evidence of the Magistrate.
The scheme of sec. 21 to 27 shows that this group of sections relate to admissions of which a confession made by an accused is a species and to certain circumstances which may prohibit the proof of such confessions or admissions. A confession is a kind of admissions and there is no clear-cut line of demarcation between the two. Again, admissions may be relevant in civil as well as in criminal cases, and admissions that might be proved in civil cases are not inadmissible in criminal cases as such.
@13 ,Section 22- When oral admissions as to contents of documents are relevant.
The contents of document which is capable of being produced must be proved by the instrument itself and not by oral evidence. Oral admissions as to contents of document are excluded under this section. They are however admissible when the party is entitled to give secondary evidence of the contents of such document under sec.65 and 66. Such admissions are also admissible when the genuineness of the document produced is in question.
@14 ,Section 22 A- When oral admission as to contents of electronic records are relevant.
This section has been inserted by I.T. Act 2000. The purpose of this new section is to provide for the circumstances in which an oral admission could be proved as to the contents of an electronic record. The section disallows the evidence of oral admission as to the contents of an electronic record. It may be proved in evidence when the genuineness of the record has been questioned.
@15, Section 23- Admissions in civil cases when relevant.
In civil cases an admission is not relevant when it is made
(1)upon an express condition that evidence of it is not to be given, or (2) under circumstances form which the court can infer that the parties agreed together that evidence of it should not be given.
@16, Admissions are relevant in subsequent proceeding on remand-
An admission was made in the earlier round of proceedings when the matter was before the trial court. The judgment of trial court was set aside and the matter was remanded for consideration afresh. It was held that the admission in question was a significant fact which could not have been overlooked in the fresh trial for the purpose of appreciation of evidence by the trial judge.(Standard Chartered Bank-Vs-Andhra Bank Financial services Ltd., 2006(6)-SCC-94).
@17 , Admission of certain documents directly in evidence without formal proof-
In para 32 of Criminal Manual attention of the Magistrates and Judges is invited to section 294 of Cr.P.C. according to which, the particulars of the documents filed before the court shall be included in a list in the prescribed form and the accused if any, shall be called upon to admit or deny the genuineness of each such documents and if the genuineness of any document is not disputed such document may be read in evidence in any enquiry, trial or other proceedings, without proof of the signature of the person to whom it purports to be signed which, however, the court may in its discretion require such signature to be proved.
@18, Production, relevancy and admissibility of documents-
As per para 33 of Criminal Manual- (1) when the documents are sought to be produced in the courts, the courts concerned should insist upon the list of such documents and the production thereof being made in chronological or some other methodical order.
(2) Similarly, the courts concerned should determine as to whether documents sought to be produced in the court are relevant and admissible or not, at the time when the documents are sought to be produced, and not at the time of the delivery of judgment.
As per para 35 of Criminal Manual-when only a portion of document is admissible, a note should be made as soon as the document has been proved and admitted into evidence. The exclusion of the inadmissible portion of such documents should not be left over for consideration at the time of writing judgment.
@19, Confession-
According to sec.24 of Evidence Act, a confession by an accused is irrelevant if it is caused by (1)inducement; (2)threat; or (3) promise. The inducement, threat or promise should have (a) reference to the charge against the accused, (b) proceeded from a person in authority, and (c) sufficiently given the accused person reasonable grounds for supposing that by making the confession he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
@20, A confession is relevant -
(1)if it is made after the impression caused by any such inducement, threat or promise has been fully removed(sec.28);
(2)if it is not made to a police officer(sec.25);
(3)if it is made in the presence of a Magistrate when the accused is in the custody of a police officer(sec.26).
@21, Points of difference between confession and admission- A confession differs from an admission:
(1) A confession is a statement made by an accused person which is sought to be proved against him in a criminal proceeding to establish the commission of an offence by him; while an admission usually relates to a civil transaction and comprises all statements amounting to admissions as defined in sec.18.
(2)A confession if deliberately and voluntarily made may be accepted as conclusive in itself of the matters confessed; an admission is not a conclusive proof of the matters admitted, but may operate as an estoppel.
(3)A confession always goes against the person making it; an admission may be used on behalf of the person making it under the exceptions provided in sec.21.
(4)The confession of one of two or more accused jointly tried for the same offence can be taken into consideration against the co-accused(sec.30). But an admission by one of several defendants in a suit is no evidence against another defendant.
@22, How much of the information received from accused may be proved (sec.27)-
This section is founded on the principle that if confession of accused is supported by the discovery of a fact it may be presumed to be true and not to have been extracted. It comes into operation only:-
(1) if and when certain facts are deposed to as discovered in consequence of information received from an accused person in police custody; and
(2) if the information relates distinctly to the fact discovered.
@23,     Object-The object of this section is to admit evidence which is relevant to the matter under enquiry, namely, the guilt of accused and not to admit evidence which is not relevant to that matter. The discovery of a material object is of no relevancy to the question whether the accused is the guilty of the offence charged against him unless it is connected with he offence. It is therefore the connection of the thing discovered which renders its discovery a relevant fact.
@24,    Admissibility of information received from accused-
Before section 27 can come into play, there must be a fact discovered and the fact must be discovered in consequence of some information received from an accused person. The section lays down a further qualification that the whole of the statement made by the accused in consequence of which the fact is discovered is not admissible. Only so much of the statement is admissible as relates distinctly to the fact discovered. Therefore once a relevant fact is discovered by reason of a statement made by the accused to a police officer, the court must srcutinize the statement in ordert o find out which portion of that statement bears a distinct relationship to the discovery of the fact.
Sec.28-A confession is admissible after the impression caused by an inducement, threat or promise has been fully removed because it becomes free and voluntary.
Sec.29-A relevant confession does not become irrelevant because it was made-
(1)under a promise of secrecy; or
(2)in consequence of a deception practised on the accused; or
(3)when the accused was drunk; or
(4)in answer to questions which the accused need not have answered; or
(5)in consequence of the accused not receiving a warning that he was not bound to make it and that it might be used against him.
Sec.30 is an exception to the rule that the confession of one person is entirely inadmissible against another. Under this section a confession by one person may be taken into consideration against another-(1) if both of them are tried jointly;
(2)if they are tried for the same offence; and
(3)if the confession is legally proved.
@25,   Extra Judicial confession :-
In “Bhagwan Dass-Vs-State (NCT) of Delhi,2011 (0) AIR(SC) 1863 : 2011 AIR(SCW) 2867” it is observed that, An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the relia- bility of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of at- tributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpe- trator of the crime and nothing is omitted by the wit- ness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touch- stone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it pass- es the test of credibility.”
@26,   As per para 17 of Criminal Manual- Accused persons willing to make a confession should be taken for the purpose before a Judicial Magistrate and, whenever possible, before the Magistrate who will not eventually try the case.
Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under the code of criminal procedure or any other law for the time being in force, or at any time afterwards before the before the commencement of enquiry or trial, as required by section 164 of Cr. P. C.
Para 18 of Criminal Manual provides instructions for the guidance of Magistrate recording confessions and statements under section 164 of Cr.P.C. Guidelines for confessional statements are also given in “Kartar Singh-Vs-state of Panjab-1994(3)-SCC-569”.
@27 ,   Recording of confessional statement-
The emphasis laid by the Hon' Supreme court on the Magistrate recording a confession to satisfy himself by appropriate questioning of the confessing accused that the confession is true and voluntary and strict and faithful compliance with the provisions of sec.164 of the code and the instructions issued in the Criminal Manual affords in a large measure the guarantee that the confession is voluntary. The failure to observe the safeguards prescribed therein are calculated to impair the evidentiary value of the confessional statement.(State of Maharashtra-vs-Surendraram Sankaratira, 2004-All M. R. -Cri-3098).
@28,    Precaution needed in recording-
Accused brought before Magistrate handcuffed in police custody. Magistrate must ask specific questions to ensure that no physical or mental pressure was put on him by investigating agency. Magistrate must also ask why he wants to make the confessional statement which may incriminate him. Magistrate should give sufficient time to accused and also assure him of protection from any apprehended torture or pressure in case of his refusal to make confession. Confession must also be recorded in question-answer form. (Bhagwan Singh -Vs- State of MP-2003(3)-SCC-21).
Satisfaction of court-
Unless the court is satisfied that the confession is voluntary in nature, it can not be acted upon and no further enquiry as to whether it is true and trustworthy need be made.(Shivappa-Vs-State of Karnataka-AIR-1995-SC-980).
Confessional statement: Test to determine:-
The test is that the statement must be read as a whole and then only the court should decide whether it contains admissions of incriminatory involvement in the offence of accused. If the result of that test is positive then the statement is confessional otherwise not.(Lokeman Shah-Vs-State of W. B.-2001(5)-SCC-235).
@29,   In the course of investigation: Recording of confession:-
There is no necessity that police has to produce accused before a Magistrate and ask for recording his confession. An accused himself can ask for recording his confession before a Magistrate. But for this, a Magistrate must have reason to believe that investigation has commenced and the person asking for recording his confession is concerned in such case, he can not record his confession by mere asking by accused.(Mahabir Singh-Vs-State of Haryana-2001(7)-SCC-148).
@30,    Conclusion :-
In India admission of facts is a proof against the party making the admission but admission on a pure question of law is not binding on the maker. Sec.17 to 20 define admission. Sec.21 gives as to which party to a proceeding can use admission ie. it gives as to when an admission by one person can be proved by another and when and in what circumstances it can be proved by the person making the statement. Sec.22 excludes the oral evidence against the contents of documents. Sec.23 deals with relevancy in civil cases of admission made upon an expressed condition that it shall not be given in evidence.
Admission in criminal cases is almost same as defined in sec.17. Admission of an accused is a statement by which he neither admits the guilt in terms nor does he at any rate admit substantially all the facts which constitute the offence. But from his statement an inference is suggested that he might have committed the offence in question.


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