Lawwatch

Law Relating to Succession & Other Certificates

Legal Heirship Certificate, Succession Certificate and Letters of
Administration have close relation. They serve a common purpose – they
are being used for devolution of some rights on the property of a person
died intestate, to their legal descendants. These certificates, because
of their names rather than their contents, create some confusion in the
minds of not only ordinary people but some learned lawyers also. The
purpose of this write up is to bring in some clarity in regard to the
basic nature of those certificates governing inheritance and succession.

The bank accounts, property, personal assets and investments that a
person leaves behind when he dies are altogether called ‘estate’. When
there is a contest in the nature of devolution of the ‘estate’ to the
descendants, it is necessary to obtain legal authority from the court.
Normally, Will is the legal instrument by which a person makes a plan
for disposition of his property after his death. When the deceased
person leaves no Will or his Will cannot be executed due to some
reasons, there comes the role of such a certificate for disposing of his
‘estate’.

Duly Executed Ancient Will Needs No Further Proof

Execution and attestation of Will

A Will, as per Section 63 of the Indian Succession Act, 1925 (ISA),
requires to be attested by two or more witnesses. Each of the witnesses
must have either seen the testator sign or affix his mark to the Will,
or give directions to someone to affix his signature in his presence, or
get personal acknowledgement by the testator of such testator’s assent
to the Will. Above all, each of the witnesses to the ‘Will’ should have
signed the ‘Will’ in the presence of the testator.

Normally the propounder of the Will must show by cogent (and
satisfactory) evidence that the ‘Will’ which the propounder relies on
was signed by the testator, and that the testator was in sound disposing
mind when he signed the ‘Will’, and that he understood the nature and
effect of the disposition, and that he placed his signature on the Will
of his own freewill (and accord), and that too without any force,
coercion or undue influence of whatsoever nature.

Law relating to Will in a Nutshell

Introduction

Will is a legal declaration in the form of a document, expressing the intention of a testator, about how his property would be devolved on whom after his death. It is a personal document of a testator of sound mind, in regard to the disposition of his property in the event of his death. The law authorises any person of full testamentary capacity to
dispose of his property by means of a Will.

The legal provisions governing the Will are provided for mainly in Part VI of the Indian Succession Act, 1925. In proving a Will various sections of the Indian Evidence Act, 1872 would apply.

Testator is a person who makes a Will or testament. The term testator also includes any person appointed by a competent court to administer the estate when the testator does not name an administrator in the Will. The testator of a Will can assign in the Will an administrator (propounder) who has the authority to execute the Will when the testator
dies.

All about Revision in Criminal Cases

Introduction

Revision is the process of examination of an order of a lower court by a
higher court, so as to rectify any improper exercise of judicial power.

The precise purpose of revision is to examine the correctness, legality
or propriety of any proceedings before any inferior court. Revision
keeps the lower court within the bounds of their authority and makes
them work according to well defined principles of law. Revisional
jurisdiction is analogous to power of supervision and superintendence.

Acquittal of the Accused before Defence Evidence

Introduction
Acquittal before defence evidence in sessions trial is something very
rarely happens in Indian courts but there is a legal provision in the
Criminal Procedure Code, 1973 (CrPC), for the purpose. It is a mechanism
incorporated in the law to end the criminal proceedings against the
person accused of criminal offence unnecessarily, at an early
opportunity in the trial process.

Relevancy in Indian Evidence Act

The term evidence is a bit ambiguous one. It refers to what is adduced by a party in a court proceeding as a means of establishing a fact or its truth. Evidence essentially refers to those items or things that make the truth of a disputed matter quite apparent to a court.

Arrest of an Accused is not a must in every Cognisable Case

Introduction

The issue that this article discusses is whether registration of a First
Information Report (FIR) against an accused needs to be followed by
his/her imminent arrest.

Nowadays, when an allegation of committing a cognizable offence comes up
against a person - particularly a celebrity - there will be a public
outcry for his/her arrest even though such an arrest is unwarranted in
accordance with criminal jurisprudence or its practice. Unnecessary
arrests and unjustified pre-trial detention pose grave threat to many
citizens accused of committing cognizable criminal offences.

The five member constitutional bench of the Supreme Court in
Lalithkumari case
categorically stated that the arrest of a person is not directly linked
to the registration of FIR. The verdict states both are entirely
different concepts operating under different parameters and if a police
officer misuses his power of arrest, he can be tried and punished under
Section 166 of the Indian Penal
Code
. Therefore a police officer
should apply his mind independently while taking a decision on arresting
anyone. He should ignore the vociferous public outcry for arrest that
goes just against what is stated in the statue book. Arrest and
detention of the accused in custody is treated by people in general as a
procedural punishment for the accused.

Role of an attesting witness in a Will

Attesting witness

An attesting witness is a person who puts his sign or mark on a deed or
will at the request of its creator, immediately after its execution, for
the purpose of proving and identifying that it is executed by the maker
of it. Unless the maker of the document wants the witness to attest it,
the latter will not be considered an attesting witness even though he
may have seen the persons executing it.

In the case of a Will, an attesting witness is the one who witnesses the
testator making the Will by signing it. The execution and attestation
are clearly distinct formalities. The former is the act of the parties;
the latter is of the witnesses.

In attestation clause of the Will, the witnesses certify that the
instrument has been executed before them.

Reliability of a Child Witness in Judiical Proceedings

The witness is a prime source of evidence in judicial proceedings. A
witness is the person who gives testimony or evidence before any
judicial institution. A child witness is the one who at the time of
giving testimony is below the age of eighteen years. T
he law in India
recognises that the child is a competent witness. A witness is
said to be competent when there is nothing in law that prevents him from
appearing in court and giving evidence. The key concerns about child
witnesses are their competence and credibility as witness. It has now
been well settled that the evidence of a child witness is not
required to be rejected per se.

Exercise of Discretion by Courts in Deciding Bail Applications

When an allegation of a cognizable case crops up against a person, for
any genuine or other reason, before the police for necessary legal
action, the Station House Officer (SHO) is duty bound to register the
First Information Report (FIR). Thereon the police, in a ritualistic
manner as being done over the years, would arrest him/her and put in
lock-up. The detention may continue for many years before the case is
finally decided by the court. Later when the bail application for
his/her release is moved before the court the judge will refuse to grant
him/her bail in yet another ritualistic response. Denial of bail is an
easy option for the magistrate in not getting into unnecessary
allegation or trouble. The magistrate ignores the fact that the granting
or denial of bail is to be exercised with utmost care and caution by
applying pristine discretion, unequivocally granted to him by Section 78
read with 81 of the Criminal Procedure Code (CrPC).