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


                According to wigmore, the facts which would normally fall under this section are of five common cases, though there may be some more conceivable cases.
1) The absence of the person charged at the place of occurrence(alibi);
2) The absence of a husband (non-access) – a variety of the preceding;
3) The survival of an alleged deceased person after the supposed time of death;
4) The doing of a crime by a third person; and
5) The self-infliction of the harm alleged (see Wigmore Section 136-144, 2nd Ed).
  @2                 If an object is secreted by the accused and recovered from his conscious possession and is found to be an incriminating object, it is relevant under Section 8 or Section 11(2).
                    More physical presence of the accused in proximity or in close proximity to the object cannot by itself be an incriminating circumstances unless it can be held that he was in conscious and intelligent possession of that object. Merely because he is the head of the joint family, or the owner of the house, he cannot be credited with constructive knowledge lacks the element of mens rea or criminal intent which is essential for an offence.
         It was held : “ A person cannot be said to be in possession of an article which he or she does not realise is or may be in her handbag, in her room or in some other place, over which she had control.
               Meaning of – The plea of Alibi postulates the physical impossibility of the presence of the accused at the sence of offence by reason of his presence at another place. The plea can, therefore, succeed only if it is shown that accused was so far away at the relevant time that he could not be present at the place where the crime was committed; distance thus would be a material factor in the matter of acceptability of the plea of alibi and the distance of 400-500 yards between the place of occurrence and the place where the accused claimed to be present cannot be said to be 'present elsewhere'. Alibi is based on the theory that the fact of presence elsewhere is essentially inconsistent with the presence of the accused at the place and time of the alleged occurrence, and the participation in it.
Where the accused handed over his diary to the police and claimed that certain entries establish his presence at a different place on the right in question, it is relevant under illus. (e) of Section 8 read with this section.
                  Denial by an accused of an assertion made by his employer that the accused was on leave of absence from duty on the date of offence, does not amount to pleading of alibi. A plea of alibi of the accused cannot be taken into account merely because a certificate has been produced by the accused from his employer to the effect that the accused was working in the mill at the relevant time of the incident unless he produces some persons on behalf of his employer or examines himself in order to mark the said document.
WIGMORE(Vol.!, Section 136, p. 570) states that the argument of alibi is not confined to criminal acts but may be equally applied to the disproof of civil acts, such as the execution of a deed.
In Sahdeo Shham v. State of Vindhya Pradesh; it was held that a request to call the witness to prove alibi at the very end of the trial would appear to be vexatious and dilatory, unless the possibility of making such a request has been indicated at the earlier stages. A defence of alibi, if true, is to be raised at the earliest moment.
Strict proof is required to prove the plea of alibi and the burden was on the accused. In the instant case, strict proof of impossibility of the presence of the accused at the place of occurrence was not available and hence the plea was not sustainable. The accused persons taking the plea of alibi have to make out the case of their alibi and to satisfy the jMagistrate that they were not present at place of occurrence on the day and time of incident.
               Where a plea of alibi is set up and it utterly breaks down, it is a strong inference that, if the prisoner was not in fact where he says he was, then in all probability, he was where the prosecution says he was.
  @6                       The plea of alibi must be proved with absolute certainity, so as to completely exclude the possibility of the presence of the person concerned at the place of occurrence. Alibi is a plea which must be proved to the fullest satisfaction of the Court and faor the same the person who takes such plea must put forward cogent evidence in this regard as the burden of the same heavily lies on him. Where there was no contemporaneous document was produced to prove the plea of alibi, it was not accepted. In a case Supreme Court observed that absence from the factory did not mean absence from the place of crime, the same being nearby.
The Allahabad High Court held that if the evidence by the accused in respect of his plea of alibi creates a reasonable doubt about the genesis of the occurrence, it would be sufficient to give benefit of doubt to the accused.
WIGMORE observes : “ The defendant's case is often much weakened by an unsuccessful attempt to prove an 'alibi'. But this result happens, not because of any implied or technical admission involved in the attempt but because of fraud and subornation of perjury manifested in the attempt............... In no case can the attempt be held to involve an admission of crime, nor the simple failure to establish it afford any presumption of the defendant's presence at the time and place when and where the crime was committed......It can have no effect upon the question of his presence at the place charged, otherwise than by disclosing falsehood and prevarication and thus affording general evidence of guilt.
The fool-proof alibi is no doubt the must effective answedr to a charge. A false ploea of alibi is very dangerous, the result of which is like a bubble if successfully picked rebounds on him who has taken it, which while smashing his defence, strengthens the prosecution.
            For the purpose of arriving at the conclusion that the plea of alibi has been exstablished, not only the defence evidence in support of the plea but also the prosecution evidence should be examined. The accused has to prove the plea of alibi under Section 103 of this Act, and it is not for the prosecution to prove that the accused was absent from duty on the date of occurrence.
 @8                The plea of alibi must cover the whole time of the transaction or atleast so much period as to render the presence of the accused improbable at the time of the crime.
The Privy Council, in Bhuboni Sahu v. the king, observed: “The tendency to include the innocent with the guilty is peculiarly prevalent in India, as judges have noted on innumerable occasion, and it is very difficult for the court to guard against the danger. An India villager is seldom in a position to place cogent evidence of alibi. If he is charged with having taken part in a crime on a particular night when he was in fact asleep in his hut, or guarding his crops, he can only rely, as a rule, on the evidence of his wife, members of his family, or friends to support his story, and their evidence is interested and not likely to carry weight. The only real safeguard against the risk of condemning the innocent with the guilty lies in insisting upon independent evidence which in some measure implicates each accused.
Plea-Admissibillity of. - Plea of private defence as set up by the accused is rejected where accused states that he inflicted stab injury by pen-knife while deceased was making imminent threat of attack on his person by elongated weapon whereas inflicting of stab injury is not possible by means of pen-knife.
(Sellauthu v, State of Tamil Nadu, 1995 Cr LJ 2143 (Mad).
Accused has no right to claim private defence when it is proved that the deceased was unarmed and was not an aggressor. Conviction for murder is deceased was unarmed and was not an aggreessor. Conviction for murder is proper.
(K. Sudhakaran V. State, 1995 Cr LJ 721 (Ker). )
Act in self-defence. - (i) When the deceased fired the shot at the accused, the accused was left with no alternative other than to fire the shot back in self-defence. The accused has, thus, acted in self-defence and cannot be held guilty for the offences he was convicted. His firing the shot at the deceased was in self-defence and that exonerates him completely from the guilt.
(Jagdish Chandra V. State of Rajasthan, 1987 Cr. LJ 649 : (1987) 2 Crimes 482.)
(ii) Right of private defence cannot be claimed for defence of body of his father.
( State of M.P., vs. Mohandas. 1992 Cr. LJ 101 (M.P.)
Burden of proof. - A case of right of private defence appears or the right of private defence is taken at the stage of investigation or trial it is the obligations of the prosecution to negative the circumstances and destroy the defence plea to sustain the conviction of the accused.
(Subodh Tewari V. State of Assam. 1987 (1) Crimes 791 (gau).)
Criminal trespass – whenever a criminal trespass is committed in the very presence of the person in actual possession of land. Such person does require a right of private defence of property and in exercise of that right he is entitled to use such force as it is considered necessary to maintain his own possession and to turn away the intruder.
{Paras Ram v. State of H.P., (1985) 1 Crimes 112 (HP)}
Free fight. - In case of free fight, right of private defence is not available.
{Shashi Behera v. State of Orissa, 1986 (1) Cr. LJ 1145 (ori)}
Inflict more harm than necessary is no defence.- If there is no right of private defence, there can be no question of exceeding that right. If the said right is there, no person exercising his right of private defence can inflict more harm on assailant than is necessary for the purpose of his defence.
{Kaliya v. State of Rajasthan, 1985(1) Crimes 235 (Raj)}
Right of private defence.- (i) Private defence of property is available to the person who is in settled possession of land against aggressor.
{State of H.P. v. Govind Ram, 1985 Cr.LJ9H.P.) :1985 Sim LC 291 : (1985) 2 Crimes 120}
(ii) Whether a criminal trespass is committed in the very presence of the person in actual possession of land such person does require a right of private defence of property and in exercise of that right he is entitled to use such force as it is considered necessary to maintain his own possession and turn away the intruder.
{Paras ram v. State of H.P, (1985) 1 Crimes 112 }
Unpreparedness for attack is the best proof. - Unpreparedness for attack is the best proof of non-aggression and that unpreparedness on the part of the complained party is there in the instant case. Held, the plea of private defence put forward by the accused persons is thus only a tell-tale.
Right of private defence- (i) When the appellant saw that the aggressors were numerically stronger, they started the assault and his wife was assaulted by one of them by means of a strike of a lathi, as the case may be, it was normally difficult on his part to remain, calm and cool. On the other hand, like a normal human being having the instinct to protect himself and his dear and near ones from approaching danger, it was possible that he was convinced from the surrounding circumstances that unless he would strongly resist to the attack and strikes, he will be further assaulted and may be killed.
The appellant of his own self and that of his wife is protected by Section 100, I.P.C. Therefore, he is entitled to acquittal.
(ii) Even if on the basis of material as it stands, the right of private defence of the accused appellant is not established still the material produced in cross-examination and circumstances discussed above do indicate that the incident might have happened in a manner in which it was suggested by the accused-appellant and in this view of the matter it could not be said that the prosecution has been able to establish the offence against the appellant beyond reasonable doubt.
(iii) The inmates clearly had a right of private defence against the intrudes who tried to extract money by force.
(iv) When prosecution failed to establish offence beyond reasonable doubt, accused entitled to be acquitted.
{Seriyal Udayar v. State of T.N. 1987 Cr.LJ 1058 : AIR 1987 SC 1289 : (1987) 2 Crimes 57 : (1987) Cr.LR (SC) 229}
(v) Such right could be claimed by husband and in-laws of victim a young-lady of 25 years in injuring persons who dragged her out of house at odd hour of night by force with an intention to seduce her to sexual intercourse.
{Prakash Chandra v. State of Rajasthan 1991 Cr.LJ 2566 (Raj) }
(vi) When deceased inflicting knife injuries on accused lady, she must be considered to have acted in exercise of her right of self-defence while returning injuries on deceased.
{Nabai Bai v. State of M.P, 1992 Cr. LJ 526 (SC) }


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