Attesting Witness to Appear before the Court for proving the Will

Judgement on the will

A Will is basically a legal declaration of the intention of the person regarding the enjoyment of his properties after his death. According to law, a Will is required to be signed by the testator ( the person who has made the Will) or any person in this behalf authorized by him and has to attest by at least two witnesses in the presence of the person who has made the Will and in the presence of each other. Those who attest must have also witnessed the testator putting his signatures or affixing his mark.

The Hon’ble Supreme Court in the Landmark Judgement of Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas Kataria & Others had held that besides the signature of testator and attesting of Will by witnesses, it is also required that at least one of the two attesting witness should have appeared before the Court and subjected to the due process of Court for proving due execution of the Will.

Thus before a Will can be used as credible evidence in the Court of Law, attesting witness who is alive and capable of giving evidence, has to be necessarily examined before the document required by law to be attested can be used in an evidence.

The Apex Court further held that if the witness appearing before the court is only able to prove the attestation of will by him but fails to prove the attestation by the other witness than he has not been able to prove the validity and legality of the Will and the other witness will also have to be produced in the court.

This Judgment is remarkable in the sense that it seeks to reaffirm the well-established law in regard to the Wills. Henceforth  not only statutory requirements for proving the Will are to be satisfied but it has to be established beyond any reasonable doubt that it is free from any suspicious circumstances before it can be admitted as evidence in the Court which can be done only if the attesting witnesses appears before the court and opportunity can be afforded to the other party to cross-examine him.

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Co-owners own every part of the joint property together

Landmark Judgement on Property Ownership

The Apex court once again upheld it’s principle that co-owners of a joint property enjoy the ownership of the whole property along with other joint owners.

A layman’s explanation of this judgment can be expressed in the following method. Let us say that A and B are co-owners of a joint property. Now the joint property has four chairs. By the apex courts judgment A and B shall not have a complete ownership of two shares, instead they both have a fifty percent ownership of all the four chairs.

Thus the apex court in the judgment for Om Prakash vs Mishri Lal upheld this principle. However a valid interpretation of this judgment is also that all the co-owners also have equal share of responsibility. That is A and B will have to pay equally for the repairing and maintaining of the chairs.

Needless to ownership of the property is not restricted to anything. All the articles that are present in the property will be covered.

This judgment is considered as a landmark in the field of property ownership and defining which property comes under the ownership is still considerably vague.

Regardless of this, this is a commendable judgment which shall put much of ongoing and future litigation to rest.

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Case of an NRI – Court judgement against property developer

Court judgement against property developer

In the present matter, the Complainant booked a Residential floor in the Project ‘Omaxe Cassia’ of the Developers. The Allotment letter (26.07.2012) provided that the floor would be delivered within 24 months from the date on which Agreement will come into effect but not later than 30 months (25.01.2015). The Complainant paid about Rs.51 lacs of the total amount of Rs. 56 Lacs. Developers through various emails sought the extension of the period for delivery but failed to transfer the possession of the Floor within the stipulated time.

The Complainant filed the Complaint in State Commission, U.T. Chandigarh holding the Developers responsible for Unfair Trade practises and deficiency in services. The Complainant claimed possession of floor along with interest, compensation and cost of litigation.

Claimed possession of floor along with interest, compensation and cost of litigation

The Developers challenged the complaint on the following grounds:

  • The matter was to be referred for Arbitration as per the Agreement.
  • The suit cannot be filed in the State Commission of Chandigarh as payments were made in New Delhi.
  • The State Commission did not have the Monetary Jurisdiction to deal with the case.
  • The Complainant being an NRI has bought the property for commercial purposes.
  • Time is not the essence in the case of sale of immovable property.

The Commission directed the Developers to complete the construction of the project and handover the possession along with fine or interest @12% p.a. and compensation for mental agony and harassment (as the Complainant invested huge amount of money with the hope to get a roof over his head but could not because of the Developer’s failure), and also Rs. 50,000 as the Cost of litigation.

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