Acceptability Of A ‘Will’ In Financial Institutions: Problems And Possible Solutions

first_imgColumnsAcceptability Of A ‘Will’ In Financial Institutions: Problems And Possible Solutions Raghav Kumar Singh26 July 2020 8:07 AMShare This – xAlthough a ‘Will’ is a legal instrument but when it comes to its acceptability, it is obviously not treated at par with that of the Succession Certificate or a letter of administration. Most of the financial institutions have internal policies which require treating of loan proposals/deceased settlement cases with extra care and caution whenever a ‘Will’ is involved. One of the reasons…Your free access to Live Law has expiredTo read the article, get a premium account.Your Subscription Supports Independent JournalismSubscription starts from ₹ 599+GST (For 6 Months)View PlansPremium account gives you:Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.Subscribe NowAlready a subscriber?LoginAlthough a ‘Will’ is a legal instrument but when it comes to its acceptability, it is obviously not treated at par with that of the Succession Certificate or a letter of administration. Most of the financial institutions have internal policies which require treating of loan proposals/deceased settlement cases with extra care and caution whenever a ‘Will’ is involved. One of the reasons for such instructions is that high number of frauds takes place in cases of ‘Will’. Since, Succession certificate is a conclusive finding of the court regarding determination of the property rights of the members of the family of deceased in case of intestate succession, therefore, Succession Certificate shall always hold a better position in terms of acceptability in the financial institution than a ‘Will’. Since, in a Succession Certificate, the finding which is made by the court, in determining the property rights of the legal heir(s), is equivalent to a judgment of the court, therefore, it can be easily relied upon by the financial institutions in case of it being a part of the chain of title of the property or settlement of the deceased claim. As per the code of Bank’s commitment to customers by Banking codes and standards Board of India, deceased claim has to be settled and payment has to be released to the survivor(s)/ nominee(s) within a period of not exceeding 15 days from the date of receipt of the claim subject to the production of the proof of death of the depositor and suitable identification of the claim(s), to the bank’s satisfaction. It has to be considered here that although there is a timeline which has been specified of 15 days for the release of payment from the time of receipt of documents in case of deceased claim settlement, the same has been left to the satisfaction of the Bank to verify the genuineness and the authenticity of the ‘Will’ and also whether it is the last and final ‘Will’. Therefore, that process may take more time and it differs from case to case basis. Similarly, when a ‘Will’ is involved in the Chain of title of the documents, financial institutions would be careful in considering the same or treating it at par with any other document like sale deed, gift deed, etc, conveying the title of the property for the above-mentioned reasons. Therefore, the question arises here as to how the ‘Will’ should be treated by such financial institutions in order to strike a balance between the interest of the customer as well as the legislative intent of use of a ‘Will’ as a document for conveyance of property rights and safeguarding the security interest of such financial institutions? It would not be wise to expect one straight jacket formula for the aforementioned question. One needs to understand that every document has a degree of acceptability in every institution and there involves varying scope of risk with each document. It is obvious that such document which can be easily verified and authenticity of which can easily be examined would be more acceptable than the other. Considering the aforementioned factors, the question which would arise while considering a ‘Will’ is, can it be easily verified? And can the authenticity of a ‘Will’ be examined conveniently? In order to understand this, first we have to understand, what is the meaning of a ‘Will’? The ‘Will’ is defined under Sec. 2 (h) of the Indian Succession Act, 1925 as “the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.” In common terms, a ‘Will’ is the document which allows the owner of the property to enjoy the benefits of such property till his lifetime and then vest such rights relating to the property after his demise to the person of his choice by exercising his prerogative. Generally, this prerogative is exercised in order to do away with the operation of the Law of Intestate Succession. The owner of the property might not want the devolution of the property to take place as per the law of intestate succession since such devolution may not be as per his intention or wishes. Also, one of the other reasons for executing a ‘Will’ is to save the legal heirs from the hardship and rigorous process of obtaining the Succession Certificate from the Court which has cost implications and also consumes a lot of time and effort. In order to understand the complete operation of ‘Will’, it is pertinent to understand the effect of Part V of the Indian Succession Act, 1925 deals with the provisions of Intestate Succession i.e. when a person dies without making a ‘Will’ and PART VI of the Indian Succession Act, 1925 which deals with the provisions of Testamentary Succession. And Section 57 which sets forth that such provisions are applicable in territories of Calcutta, Madras and Bombay subject to the restrictions specified therein. And it is further pertinent to understand what ‘probate’ is? As per section 2(f) of the Indian Succession Act, 1925, Probate means the copy of the will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator. Basically, it is a judicial proceeding conducted to examine the validity and authenticity of the ‘Will’. Furthermore, Sec.213 (1) of the Indian Succession Act, 1925 states that no right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate or the ‘Will’ under which the right is claimed, or has granted letters of administration with the ‘Will’ or with an authenticated copy of the ‘Will’ annexed. The sub section (2) of the said section further states that the said section shall not apply in case of will made by Mohammedans or Indian Christians and shall only apply to the cases of ‘Will’ made by any Hindu, Buddhist, Sikh or Jain where such ‘Wills’ are of the classes specified in clauses (a) and (b) of section 57. A combined reading of Sections 213 and 57 of the Act would show that where the parties to the ‘Will’ are Hindus or the properties in question are not in territories falling under Section 57 (a) and (b), Sub Section (2) of Section 213 of the Act applies and sub section (1) has no application. As a consequence, a probate of a ‘Will’ is not required to be obtained by a Hindu, in respect of a ‘Will’ made outside those territories or regarding the immovable properties situated outside those territories i.e. Calcutta, Madras and Bombay. Therefore, it can be safely said that it is not mandatory to probate the ‘Will’ other than in the territories of Calcutta, Madras or Bombay. However, it is advisable to get the WILL probated in order to rule out the coercion, to confirm the subject Will is the last Will and to rule out the contrary claim on the subject property. Now after attaining the clarity about what is a ‘Will’ and what is a ‘Probate’, let us consider the two most important questions i.e. whether a ‘Will’ can be easily verified? And can the authenticity of a ‘Will’ be examined conveniently? Since, it has been already stated that it is not mandatory for the will to be probated apart from the territories of Calcutta, Bombay and Madras; it would mean that any person can make a ‘Will’ on a simple piece of paper, specifying his intention in regard to the devolvement of the property rights as per his prerogative. However, even if that ‘Will’ is not required to be probated, whether it needs Registration? By definition nothing compels a ‘Will’ to be compulsorily registered under section 17 of the Registration Act, 1908. But considering the fact of relevance of ‘Will’, which shall have financial implication, it is always recommended to get a ‘Will’ Registered. Creating a record by virtue of Registration shall afford some degree of genuineness and authenticity to that document. But whether a registered will can be considered as a final ‘Will’ in law? The answer is ‘No’. Even if the ‘Will’ has been registered then also a subsequent ‘Will’ can be made and the previous ‘Will’ can be cancelled. This would mean that even registration does not afford the final word on authenticity and genuineness of the ‘Will’. Therefore, considering the aforementioned tests-Whether a document can be easily verified and can the authenticity of that document be examined conveniently? The answer which we were looking for, which is a comfortable ‘yes’, is missing in the instant case i.e. a registered ‘Will’. Now, the obvious question which arises here is, in order to get the answer that we are looking for i.e. a ‘yes’, what is required in case of a ‘Will’? The answer is pretty simple, as already stated, it is ‘Probate’. Even though it has not been made mandatory as mentioned above, it is the only legal proceeding which gives finality to the ‘Will’ when it comes to its genuineness and authenticity and can be easily relied upon by the financial institutions and increases that scope of acceptability of the document since it can be easily verified as there is a record created in form of an order of probate and authenticity of such document has already been verified by the Court. Therefore, it is advisable to get the ‘Will’ probated. However, probate proceedings incur cost and it takes time to get an order from the Court. One can argue that the basic purpose of creating a ‘Will’ is to make a document which could create property rights without any hassle and as already stated, avoid the hardship of getting a succession certificate from the Court and the very purpose of making a ‘Will’ is frustrated if the person is subjected to visit court and incur expenses for a legal proceeding which is not even mandatory in law. This concern is genuine but again it boils down to the question of acceptability and reliance of the financial document in order to safeguard the security interest of the financial institutions. In such a scenario where there is void to confirm the genuineness and authenticity of ‘Will’ (other than probate cases), the concern of the same being misused is not misplaced. It has to be acknowledged that when a loan is given by any financial institution (apart from loan schemes without security), the same is done on the basis of keeping certain property as a security so that when the loan is not being repaid and has been classified as a Non performing Asset, such financial institution can enforce its security interest to recover the dues. When the document by virtue of which such security interest is intended to be safeguarded itself does not inspire any confidence to the lender in terms of its authenticity and reliability then acceptability of such document is bound to get questioned. Particularly in the world of today, when there are numerous tools available to create a forged document, it becomes more important for the financial institutions to exercise all the available safeguards before disbursing any loan. Does it mean that every financial institution should not act on any ‘Will’ that is not probated? The answer is ‘No’. Every case where a ‘Will’ is involved has to be dealt with on a case to case basis. Every transaction or a chain of title where a ‘Will’ is involved is different from the other. There are certain factors which should be considered while considering an unprobated ‘Will’ like whether a ‘Will’ is registered, whether a reasonable time has been lapsed since the operation of the ‘Will’ and the subject property is in the possession of the person in whose favour the ‘Will’ has been made (legatee), whether there does not seem to exist any dispute in regard to such will and a discreet enquiry has been made to vindicate the same, whether all the legal heirs are aware about the ‘Will’ and there does not exist any dispute, whether publication has been made about the ‘Will’ inviting objections in leading newspapers and no objections were received, etc. These factors are only inclusive and as stated every will is peculiar in nature and has to be dealt accordingly. The act of balancing of legislative intent of not making probate mandatory combined with the interest of the customer producing the unprobated ‘Will’ vis-a-vis safeguarding the security interest of the financial institution has to be made without resorting to any straight jacket formula.Views are personal only.(Author is the Deputy Manager (Law)  at State Bank of India,Bhopal) Subscribe to LiveLaw, enjoy Ad free version and other unlimited features, just INR 599 Click here to Subscribe. All payment options available.loading….Next Storylast_img read more

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Discouraging Article 32 Habeas Corpus Petitions – The Legal Basis

first_imgColumnsDiscouraging Article 32 Habeas Corpus Petitions – The Legal Basis Prasanna S22 Nov 2020 10:32 PMShare This – xObservations by a bench of the Supreme Court headed by the Chief Justice of India while hearing a habeas corpus writ petition under Article 32 of the Constitution that the court is trying to discourage Article 32 Petitions – has understandably received coverage critical of the judicial attitude of the court. Particularly, as it came in the backdrop of an order granting interim…Your free access to Live Law has expiredTo read the article, get a premium account.Your Subscription Supports Independent JournalismSubscription starts from ₹ 599+GST (For 6 Months)View PlansPremium account gives you:Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.Subscribe NowAlready a subscriber?LoginObservations by a bench of the Supreme Court headed by the Chief Justice of India while hearing a habeas corpus writ petition under Article 32 of the Constitution that the court is trying to discourage Article 32 Petitions – has understandably received coverage critical of the judicial attitude of the court. Particularly, as it came in the backdrop of an order granting interim bail to Arnab Goswami in a hastily convened vacation hearing punctuated by several oral observations by the bench on the paramountcy of personal liberty. This also led the court to later lament how the coverage of its observations in the habeas corpus matter had been unfair. In this article, we try and examine the basis of the court’s observations that they are trying to discourage Article 32 habeas corpus petitions. The court’s observations ostensibly come from passage in Union of India v. Paul Manickam (2003) 8 SCC 342, that is often relied on by the State to defeat Article 32 habeas corpus petitions that are preferred in the first instance without going first to the High Court. The passage in the judgment authored by Arijit Pasayat J, as part of a bench of two judges, is as follows. “22. Another aspect which has been highlighted is that many unscrupulous petitioners are approaching this Court under Article 32 of the Constitution challenging the order of detention directly without first approaching the High Courts concerned. It is appropriate that the High Court concerned under whose jurisdiction the order of detention has been passed by the State Government or Union Territory should be approached first. In order to invoke the jurisdiction under Article 32 of the Constitution to approach this Court directly, it has to be shown by the petitioner as to why the High Court has not been approached, could not be approached or it is futile to approach the High Court. Unless satisfactory reasons are indicated in this regard, filing of petition in such matters directly under Article 32 of the Constitution is to be discouraged.” On the face of it then, the court is just following a precedent and the law laid down in an earlier case. However, on a closer examination, it becomes clear why this passage in Paul Manickam ought to not have any value as a precedent at all, notwithstanding it being part of a pronouncement of the highest court of the land. First, the Paul Manickam decision arose in the contest of a Special Leave Petition filed under Article 136 challenging a judgment of the High Court under Article 226 quashing a preventive detention order. The scope and ambit of the right under Article 32 to challenge detention orders and to seek a habeas corpus writ was not in issue at all. It is settled law that only the ratio decidendi of the court is a precedent and observations that have no nexus with the issue that is being decided in a case have no precedential value. Second, the Court in Paul Manickam neither considered nor distinguished prior constitution bench judgments that have expressly held that Article 32 is the right and prerogative of the petitioner and that the petitions cannot be dismissed merely because the petitioner did not approach the High Court first. The unambgious decision of Das CJ writing for himself and three others as part of five-judge bench in K.K. Kochunni v. State of Madras 1959 Supp (2) SCR 316 considered the issue and had this to observe. “8. Shri Purshottam Tricumdas appearing for some of the respondents has taken a preliminary objection as to the maintainability of the petitions. The argument in support of his objection has been developed and elaborated by him in several ways. In the first place, he contends that the petitions, insofar as they pray for the issue of a writ of mandamus, are not maintainable because the petitioners have an adequate remedy in that they can agitate the question now sought to be raised on these petitions and get relief in the pauper suit filed by one of the respondents after the passing of the impugned Act. This argument overlooks the fact that the present petitions are under Article 32 of the Constitution which is itself a guaranteed right. In Rashid Ahmed v. Municipal Board, Kairana [1950 SCR 566.] this Court repelled the submission of the Advocate-General of Uttar Pradesh to the effect that, as the petitioner had an adequate legal remedy by way of appeal, this Court should not grant any writ in the nature of the prerogative writ of mandamus or certiorari and observed: “There can be no question that the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs, but the powers given to this Court under Article 32 are much wider and are not confined to issuing prerogative writs only.” Further, even if the existence of other adequate legal remedy may be taken into consideration by the High Court in deciding whether it should issue any of the prerogative writs on an application under Article 226 of the Constitution, as to which we say nothing now — this Court cannot, on a similar ground, decline to entertain a petition under Article 32, for the right to move this Court by appropriate proceedings for the enforcement of the rights conferred by Part III of the Constitution is itself a guaranteed right. It has accordingly been held by this Court in Romesh Thappar v. State of Madras [1950 SCR 594] that under the Constitution this Court is constituted the protector and guarantor of fundamental rights and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking the protection of this Court against infringement of such rights, although such applications are made to this Court in the first instance without resort to a High Court having concurrent jurisdiction in the matter. The mere existence of an adequate alternative legal remedy cannot per se be a good and sufficient ground for throwing out a petition under Article 32, if the existence of a fundamental right and a breach, actual or threatened, of such right is alleged and is prima facie established on the petition.” The extended context given in the earlier quote is to labour the point that the issue of the Court’s powers to throw out Article 32 petitions on the ground that the petitioner has not approached the high court first or has not tendered adequate explanation for not approaching the high court first actually arose in Kochunni and the decision . The matter however does not end there. There is perhaps one argument that could be made – that is, Paul Manickam was specific in the context of habeas corpus writs which are distinct from other Article 32 petitions – to the extent that a second habeas corpus petition to the Supreme Court under Article 32 can be preferred even if a 226 writ is denied. (In fact, habeas corpus petitions are considered a species of their own (see Dharyao v State of U.P. AIR 1961 SC 1457). This is unlike other kinds of writs wherein once 226 jurisdiction of the high court is invoked, an article 32 petition ceases to be maintainable, being hit by the doctrine of res judicata. The distinction becomes germane because 32 and 226 are mutually exclusive for a person in other types of writs, and there is no such problem with a habeas corpus writ and therefore there is no real denial of Article 32 remedy even if the petitioner is directed first to approach the High Court under Article 226. However, for such distinction to be proper in law, it has to come through a judicial pronouncement that clearly distinguishes, clarifies or overrules the previous constitution bench judgments by larger bench or atleast of a bench that is coordinate strength – in a matter that this question actually arises. Moreover, the rationale behind non-applicability of res judicata to habeas corpus petitions is the consideration of paramountcy of personal liberty as a protected constitutional right and the role of the court as its protector (Ghulam Sarwar v Union Of India AIR 1967 SC 1335, 5-Judge bench, Subbarao CJ). That being the case, it is not immediately apparent why that distinction that was made to more effectively protect personal liberty ought to be understood to serve as a distinction to defeat the interests in the case of dealing with an Article 32 Petition for habeas corpus preferred in the first instance. The third argument that can perhaps be advanced is a favourite of the State in not just habeas corpus cases, but many other Article 32 petitions. That is, the consideration of the court’s docket and the workload of the Supreme Court and it being a good policy to have persons approach the High Court first so that flood gates of litigation in Supreme Court don’t open. Apart from this argument having no independent standing in light of Article 32 being a fundamental right in itself and the Supreme Court’s own holding of its lack of discretion to entertain or refuse Article 32 petitions so long as there is a fundamental right asserted and infringement claimed in the petition, it also suffers on another count. The writ docket in the supreme court is a miniscule fraction of its workload. In 2019 for instance, only 1947 Writ Petitions were registered in the Supreme Court, as against more than 42000 Special Leave Petitions under Article 136. This is despite the remedy under Article 136 being a discretionary one and the remedy under Article 32, a matter of right. The Court’s humongous workload in its discretionary jurisdiction cannot rationally be used to defeat its duty to entertain petitions under Article 32. Moreover, it is in fact the State’s own failure that it has not created more courts to supplement the Supreme Court in exercising Article 32 jurisdiction, which it is empowered to do under Clause (3) of that article – something that the courts ought not to allow the State to take advantage of. This leads us to another syndrome that has afflicted not just our court, but also those that comment on the court. That is the clamour to rush to brand writ petitions – particularly public interest litigation as frivolous or unworthy of the supreme court’s time and indeed exhorting the court to dismiss such petitions with costs : missing totally the prerogative and the right of every citizen under Article 32 to bring claims to the Supreme Court. The social cost of guaranteeing such a remedy is necessarily that there will from time to time be causes that are objectively and truly unworthy of the Supreme Court’s time. But the answer to that cannot be making Article 32 a discretionary remedy akin to Article 136 where the court can on a whim decide whether or not the complained of cause is worthy of its time and attention. Some of the court’s recent orders imposing costs on a petition that sought to protect artifacts found during the Ayodhya excavation, or the refusal to entertain the petition that sought a declaration epidemic act as unconstitutional and asking the Petitioner to approach the high court first – are clearly not in keeping with the letter and the purpose of Article 32 being a guaranteed right. If Article 32 were to be realised as a guaranteed right, the court ought to ordinarily not dismiss such petitions in limine and whenever it does, it must do so with a speaking order showing how the petition discloses no cause of action – i.e. it does not claim a fundamental right being engaged or that it does not claim of an infringement of that right.Views are personal.(Author is a practicing Lawyer in Delhi)Next Storylast_img read more

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Second Annual Get in Gear Fest in Asheville, NC this Weekend

first_imgExcited to get outside this spring, but need some extra help getting prepared? The Outdoor Gear Builders of Western North Carolina know that great gear makes for a great trip, so they’ve got everything ready for you to take the first step toward adventure success at the Get in Gear Fest in Asheville, N.C.12496031_1009256742446311_1392189453452178217_o The Get in Gear Fest, taking place this Saturday, March 19 from 11 a.m. to 5 p.m. at RiverLink Performance Plaza, will have a little something for every outdoor enthusiast. Backpacks, bikes, boats, crashpads, tents: you name it, they’ll bring it. Plus, the Gear Builders suppliers will have plenty of that gear on hand for test runs. Meanwhile, your fellow athletes will show you how it’s done with demos, examples, and clinics. Even beer enthusiasts have a lot to look forward to thanks to the many local breweries that will be joining the crowd.There will be more gear for sale than you’ll know what to do with, but you might also get the chance walk away with some of it – minus that pesky pricetag. Silent auctions, races, and giveaways galore will take place throughout the day, so come grab your own opportunity to win.Get in Gear Fest 2015 – Outdoor Gear Builders of WNC from GoWorx on Vimeo.Some of the proceeds from the beer sales during the event will benefit RiverLink, a local environmental conservation non-profit working to protect the French Broad River area. Good gear, good beer, good cause… good deal!More info here!last_img read more

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Sharma equals fastest T20 ton

first_img(Reuters) – INDIA’S Rohit Sharma on Friday equalled the fastest century in Twenty20 International cricket from only 35 balls to set up the hosts’ massive 88-run victory against Sri Lanka and a series win with a match to spare in Indore.Opening batsman Rohit, leading India in the absence of the newly-wed regular captain Virat Kohli, matched the record South Africa’s David Miller set against Bangladesh in OctoberRohit, the only batsman to hit three double hundreds in the 50-over format, added 165 with fellow opener Lokesh Rahul to power India to 260-5 in their 20 overs for the joint-highest total by a team in what is the shortest format of the game.In reply, Sri Lanka, who lost the opening match by 93 runs at Cuttack on Wednesday, were bundled out for 172 in the 18th over to go down 2-0 in the three-match series after also losing in tests and one-day internationals.India’s wrist spinners once again did the damage for the hosts with leg-spinner Yuzvendra Chahal taking 4-52 while left-armer Kuldeep Yadav picked up 3-52.Angelo Mathews could not bat due to an injury as Sri Lanka’s chase screeched to a halt after they lost six wickets in two overs from the spinners.Kusal Perera top-scored with 77 off 37 balls for the touring side, who had also gone down 9-0 across formats to India at home earlier in the year.The 30-year-old Rohit smashed 10 sixes and 12 fours before he was eventually dismissed for 118 in 43 balls on a featherbed of a wicket at the Holkar Cricket Stadium, where Sri Lanka captain Thisara Perera won the toss and opted to field.Four of Rohit’s sixes came in consecutive deliveries off Thisara which took him to 97 and he completed his second hundred in the format with a four on the next ball he faced from seamer Angelo Mathews.Rahul took charge after Rohit’s dismissal and added 78 for the second wicket with former captain Mahendra Singh Dhoni before falling for 89 off 49 balls.India were well on course to eclipse the highest T20 International total of 263-3, which was set by Australia against Sri Lanka in 2016, but lost their way by losing four wickets in the last two overs of their innings.Mumbai’s Wankhede Stadium will host the final match of the tour on Sunday.last_img read more

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Football Guide 2016

first_imgDear Readers,Dino Babers’ Syracuse team will finally take the field for a game for the first time on Friday against Colgate. Nine months since being hired as the Orange’s head coach, Babers has implemented a host of changes for the program, most notably his Baylor-style offense. In the past two years, SU has won just seven games and is now prepping to catch teams from behind. Babers is relying on quarterback Eric Dungey, running back Dontae Strickland and wide receiver Steve Ishmael to help lead the turnaround. This comprehensive guide provides all you need to know for the upcoming season.Thanks for reading,Paul Schwedelson, Sports Editor Comments AdvertisementThis is placeholder textlast_img

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