“Law Of Wills”- Questions & Answers By Justice V Ramkumar [Part-XIII]

Q.61 Who can apply for the Letters of Administration ? Ans. In case the deceased died intestate and was a Hindu, Mohammedan, Buddhist, Sikh, Jaina or exempted person, Letters of Administration can be issued to a person entitled to the whole or any part of the estate of the deceased in view of Section 218 of the Act. In the case of an Indian Christian (who is not a Hindu, Mohammedan, Buddhist, Sikh, Jaina or other exempted person) dying intestate, Letters of Administration may be issued according to the rules contained in Section 219 of the Act.Q.62 What is the procedure for making an application for Probate or Letters of Administration and what is their Form ? Ans. The application for such Probate or Letters of Administration shall be made either to the District Judge (under Section 264 read with Section 276) or to the District Delegate (under Section 265 read with Section 276). The Form of Probate shall be as per Section 289 read with Schedule VI and the Form of Letters of Administration shall be as per Section 290 read with Schedule VII. The Court has to permanently keep the proved Will and the original Probate and Letters of Administration under its custody. As indicated by the definition of the word “Probate”, what is issued to the applicant is only a certified copy of the Certificate. (Vide para 5 of Joseph John v. Rajeena alias Brijitha 2017 (3) KHC 121 = 2017 (2) KLT 1043 – A. Muhammed Mustaque - JJ). In the State of Kerala, the High Court of Kerala, in exercise of the powers under Articles 225 and 227 of the Constitution of India, has framed Rules under the Indian Succession Act, 1925 published as per GO (Rt) No : 587/ 70 dated 01-04-1970. Those Rules are given as Appendix XII of the Civil Rules of Practice, Kerala. The application for probate is to be filed in Form No : 2 read with Rule 6 of the said Rules. The application for Letters of Administration without the Will annexed, is to be filed in Form No : 3 read with Rule 7. The application for Letters of Administration with the Will annexed is to be filed in Form No : 4 read with Rule 8. The said Rules provide for the issue of citations to persons having a caveatable interest and also the procedure to be followed by the Court in both contentious and non-contentious matters.Q.63 When does the proceedings become contentious and what is the procedure to be followed thereafter ? Ans. Even though the mere entry of a caveat may not make a proceeding contentious, it becomes so when there is appearance with a view to oppose the proceedings. (Vide Baker Fenn v. Biju 1987 (2) KLT SN 20 (Case No: 26) – S. Padmanabhan – J.) Where the case becomes a contentious matter then it has to be converted into a regular suit under Section 295 of the Act. The procedure for disposal of contentious and non-contentious matters has been explained in Elsy v. V. K. Raju 2006 KHC 1564 = 2006 (4) KLT 890 = ILR 2006 (4) Kerala 539 - V. Ramkumar - J. Proceedings in which the parties had gone into contest can become quiescent upon the termination of the contest and thereupon the case becomes non-contentious. Where the proceeding becomes contentious, Rule 26 of the Succession Rules, 1968 (Kerala) will govern the matter converting the case into a regular suit under Section 295 of the Act whereupon the petitioner for Probate or Administration becomes the plaintiff and the caveator will become the defendant. (Vide Mrs. Dorothy Luiz v. Mrs. Luiz 1969 KLT 900 - V.R. Krishna Iyer – J). But see Baker Fenn v. Biju 1987 (2) KLT SN 26 P. 20). Q.64 What is meant by a caveatable interest ? Ans. Caveatable interest is a ground in equity available to a person to protect his interest in property, the most common being a constructive trust. In the following situations a person can be said to have the requisite caveatable interest entitling him to lodge a caveat:-1. If you are the unconditional purchaser under an Agreement for sale and purchase. 2. When you are an unconditional sub-purchaser under an Agreement for sale and purchase (common in a subdivision scenario).3. As the purchaser of shares in a company where that company owns land and the agreement specifically states the purchaser has the right to caveat.4. As a beneficiary under a Trust you can caveat the Trust’s property provided you can specifically identify the land, or property that was purchased from Trust funds and your right in that property is a proprietary interest.5. Where you are a qualifying de facto partner or spouse and living in property owned by the other partner or spouse, and that property constitutes the Family Home under the Property (Relationships) Act 1976. You can also lodge a Notice of Claim over the property pursuant to the Property (Relationships) Act 1976 which is more common in this situation.6. Where someone has acquired property by fraud, the defrauded party can...

“Law Of Wills”- Questions & Answers By Justice V Ramkumar [Part-XIII]

Justice V Ramkumar

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