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

latest Judgments to be discussed on subject- proof of will, Issuance of Succession certificate, Probate etc., Issuance of legal heirship certificate.


Latest Judgments to be discussed  on subject- proof of will, Issuance of Succession certificate, Probate etc., Issuance of legal heirship certificate. 

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1)“Shahid Khan -Vs-State of Rajasthan,

[Criminal Appeal No.1460 of 2008]
[Criminal Appeal No.1461 of 2008]
[Criminal Appeal No.1462 of 2008] decided by Hon' SC on 2nd March 2016”
wherein it is held that, the delay in recording the statements casts a serious doubt about their being eye-witnesses to the occurrence. It may suggest that the investigating officer was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced.
The circumstances in this case lend such significance to this delay. PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir, in view of their unexplained silence and delayed statement to the police, does not appear to us to be wholly reliable witnesses. There is no corroboration of their evidence from any other independent source either. We find it rather unsafe to rely upon their evidence only to uphold the conviction and sentence of the appellants. The High Court has failed to advert to the contentions raised by the appellants and re-appreciate the evidence thereby resulting in miscarriage of justice. In our opinion, the case against the appellants has not been proved beyond reasonable doubt.

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2) “Uttam Vs. Saubhag Singh & Ors.
[Civil Appeal No. 2360 of 2016 arising out of SLP (Civil) No.6036 of 2014], decided by Hon' -SC-on 2nd March 2016”
It is appeal of plaintiff who filed a suit for partition, being Suit No.5A of 1999 before the Second Civil Judge, Class II Devas, Madhya Pradesh, dated 28.12.1998, in which the first four defendants happened to be his father (defendant No.3), and his father's three brothers i.e. defendant Nos. 1,2 and 4. He claimed a 1/8th share in the suit property on the footing that the suit property was ancestral property, and that, being a coparcener, he had a right by birth in the said property in accordance with the Mitakshara Law.
The first Appellate Court, confirmed the finding that the property was ancestral and that no earlier partition between the brothers had in fact taken place. However, it held that the plaintiff's grandfather, one Jagannath Singh having died in 1973, his widow Mainabai being alive at the time of his death, the said Jagannath Singh's share would have to be distributed in accordance with Section 8 of the Hindu Succession Act, 1956 as if the said Jagannath Singh had died intestate, and that being the case, once Section 8 steps in, the joint family property has to be divided in accordance with rules of intestacy and not survivorship.
It is held that, in view of the provisions contained in Sections 4,6, 8 and Schedule of the Act it is clear that after coming into force of the Act grand-son has no birth right in the properties of grand-father and he cannot claim partition during lifetime of his father. On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants.

Therefore held that, said ancestral property, not being joint family property, the suit for partition of such property would not be maintainable. The appeal is consequently dismissed with no order as to costs.


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3) “Chandrashekhar s/o Pandurang Tumsare-Vs-Dr. Balkrishna s/o Shivkaran Changani (Sharma)and others,WRIT PETITION NO. 3147 OF 2014,Bom.H.C. Uploaded on - 23/02/2016”
-the application filed by the petitioner seeking permission to amend the written statement after the commencement of trial, could not have been entertained and allowed by the trial Court as the petitioner has not even averred as to what prevented him for bringing on the record the facts sought to be incorporated by the proposed amendment.

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4) “Shri. Kailas Sitaram Adagale-Vs-State of Maharashtra, Through Yerawada Police Station, Pune, CRIMINAL APPEAL NO.324 OF 2007,Bom.H.C.Uploaded on – 22/02/2016”
“ The imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offence against women, dacoity, kidnapping etc. involving moral turpitude to moral delinquency, which have great impact on social order and public interest cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing less sentence or taking too sympathetic view on account of lapse of time in respect of such offence, may be otherwise counter productive in the long time and against social interest which needs to be cared for and guaranteed by string of deterrence inbuilt in the sentencing system.”
One of the object of imposing punishment on the accused is to
create a deterrent effect so that other like minded persons do not dare to indulge in such acts or offences. The punishment imposed by the Trial Court does not achieve that deterrent object or effect also. Therefore, we are of the firm opinion that the Appeal preferred by the State for enhancement of punishment of the Appellant has to be allowed, thereby increasing the imprisonment upto life and enhancing the amount of compensation also. Hence, the order.

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5) “Raj Narayan-Vs-Sri. Anoop, Contempt28/11, decided on 01.03.2016,AHC”.
Contempt of court Act contain no provision for review of a judgment- application for recall of order passed in contempt proceeding not maintainable- Reveiw/recall/appeal are statutory remedies-Thus unless provided in the Act, remedy is not available.

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6) “Milind v. Pramod, Arb. A 18/15, 29.02.2016 BHC Nag.”
Sec. 8(1) of Arbitration and conc. Act- Defendant can not apply to Court to refer parties to arbitration after filing application under R. 3 (5)of O. 37 CPC for grant of leave to defend – Application u/s 8 to be filed before disclosing defence in suit under O. 37 CPC.





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