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“Law Of Wills”- Questions & Answers By Justice V Ramkumar [Part-XIII]
Justice V Ramkumar
14 Aug 2023 4:31 AM GMT
![“Law Of Wills”- Questions & Answers By Justice V Ramkumar [Part-XIII]](https://www.livelaw.in/h-upload/2023/04/24/750x450_469658-law-of-wills-by-justice-v-ramkumar.webp "“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,...
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.
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.
9. Where land was purchased from you by the Crown for public works, and that land is no longer required, section 40 Public Works Acts 1981 creates a caveatable interest by the former vendor over the land to buy back the land.
10. Where you have been granted a right of way or a right under an easement over land.
11. Should you be an unpaid vendor by fraud on behalf of the purchaser.
12. Grant of a right to occupy a property pursuant to a Will. In the following cases the objector may not be entitled to lodge a caveat:-
1. If you hold a first right of refusal to purchase land, there is no equitable interest in that land until an offer has been made.
2. If you are a shareholder of a company, you cannot caveat the title to property owned by the Company.
3. You cannot caveat your own title unless you can satisfy the Register that it may be lost through an act of fraud.
4. As a beneficiary under a Will you cannot caveat the title to a living Willmaker’s property.
5. If you have been declared bankrupt then you cannot register a caveat on property not declared to the Official Assignee.
6. If your agreement or lease specifies a ‘no caveat clause’ then no caveat will be upheld unless there are public policy grounds to allow the caveat such as a breach of contract.
7. A Deed of Acknowledgement of debt that does not include a right to mortgage only creates a personal right against the debtor and so a caveat cannot be lodged over land owned by the debtor.
8. Just because an agreement provides a right to caveat a title, this is unlikely to be sustained if there is no existing proprietary or equality right in the land. The express clause does not in and of itself create and caveatable interest.
There is an elaborate discussion on “caveatable interest” in paras 98 and 121 of Krishna Kumar Birla v. Rajendra Singh Lodha (2008) 4 SCC 300 = 2008 KHC 6236 – S. B. Sinha, Harjit Singh Bedi – JJ.
Q. 65 Will not the omission on the part of the applicant for Probate in not scheduling the entire properties of the testator, entail dismissal of the application ?
Ans. No. Even if the entire properties scheduled in the Will are nor scheduled in the petition for Probate, that by itself will not entail dismissal of the petition. Court can still grant Probate. (Vide Varghees v. Oommen (1994) 2 KLT 620 (DB) – Varghese Kalliath, K. J. Joseph - JJ.)
