DV case partly Quashed [Ajay Kant and Others Vs Smt. Alka Sharma]

HIGH COURT OF MADHYA PRADESH, JABALPUR BENCH AT GWALIOR*
(Miscellaneous Criminal Case No.1266/07)
*Ajay Kant and Others Vs Smt. Alka Sharma*
PRESENT
HON. SHRI JUSTICE B.M. GUPTA

Petitioners by Shri R.K. Sharma, Advocate.
Respondent by Shri Gaurav Samadiya, Advocate.

ORDER:19/06/07
The instant petition is for impugning the order dt.18th January,2007 passed
by Judicial Magistrate First Class, Gwalior in Criminal Case No.848/07,
whereby the learned Magistrate has issued notice to the petitioners on an
application filed by the respondent under section 12 of the Protection of
Women from Domestic Violence Act, 2005 (hereinafter referred to as "the
Act").
2. Brief facts of the case are that respondent Smt.Alka Sharma has filed one
application under Section 12 of the Act against the petitioners. On which
the learned Magistrate, vide order dated 18th January, 2007, has issued
notices to the petitioners. It has been averred in the application that the
respondent has married with petitioner No.1 on 16th of May, 2005 at Gwalior.
For a period of 4-6 months she became pregnant and thereafter the
petitioners started harassing the respondent demanding Rs.2 lacs and one
Maruti car from her parents. As the father of the respondent is a pensioner,
he could not fulfill the demand. He reported the matter to Mahila Police
Station at Padav, Gwalior on 2nd November, 2005 but the report was not
lodged and no action was taken. On 3rd February, 2006 the respondent
delivered a male child in the hospital. Thereafter, on 17th February, 2006
the petitioners separated the child from the respondent, kept him along with
them and deserted the respondent. Consequently, since 20st February, 2006
she is living in her matrimonial home without her son. Petitioners are
trying to declare the respondent as mentally sick and to remarry the
petitioner No.1. Admittedly, one application for divorce has been filed by
the petitioner No.1 against the respondent and the respondent has filed an
application under Section 125 of Cr.P.C. claiming maintenance from him and
also she has filed another application under Section 9 of the Hindu Marriage
Act for seeking a decree of restitution of conjugal rights against the
petitioner No.1. These applications are pending in the Family Court,
Gwalior. On these grounds, the respondent has prayed in the application for
taking legal action against the petitioners and also to punish them.
3. The aforementioned act of filing of the application by the respondent and
issuance of notice by the Court against the petitioners has been assailed by
the petitioners on various grounds. The grounds and decisions thereon are as
under :-
(A) That, the respondent was mentally sick before the marriage, which was
not disclosed by the respondent. On this ground, application for divorce has
been filed by petitioner No.1 on 15.5.06 in which proceedings for
reconciliation have been failed on 21.9.06. Only for creating pressure
against the petitioner No.1, the present application has been filed on false
grounds by the respondent on 23.11.06.
(B) That, in the application under Section 9 of the Hindu Marriage Act filed
by the respondent these facts have not been mentioned by her that on demand
of Rs. 2 lacs and one Maruti car, she has been harassed by the petitioners
and as such the application being on false grounds, proceedings based on it
ought to quashed. The grounds in the application are false or not, this fact
cannot be decided by this Court during this
summery proceeding under Section 482 of Cr.P.C. The truthfulness or
otherwise of the facts mentioned in the application can be decided by the
learned Magistrate after due inquiry under the procedure as prescribed by
the Act. Hence, the proceeding based on the application cannot be quashed by
this Court at this stage on these two grounds.
(C) That, as provided by Section 2(q) of the Act, such application under
Section 12 of the Act cannot be filed against the petitioners No.3 and 4 who
are the ladies. In Section 2(q) of the Act the term respondent has been
defined as under :-
(q) respondent means any adult male person who is, or has been, in a
domestic relationship with the aggrieved person and against whom the
aggrieved person has sought any relief under this act : Provided that an
aggrieved wife or female living in a relationship in the nature of a
marriage may also file a complaint against a relative of the husband or the
male partner.
Thus, it is provided by this definition that an application can be filed by
an aggrieved person including the respondent claiming relief under the Act
only against the adult male person. However, as per the proviso appended to
this provision, a wife or female living in a relationship in the nature of a
marriage may also file a complaint against a relative of the husband or the
male partner. For understanding these two parts, i.e. the main part of the
Section and the proviso, it is necessary to understand the scheme of the
Act. The first three paragraphs of the statement of object and reasons under
which the bill No.116 of 2005 for passing the act was placed before the
parliament, are as under (published in the Gazette of India Extraordinary
Part II Section 2 page 22 dated 22nd August, 2005):-
"Domestic violence is undoubtedly a human rights issue and serious deterrent
to development. The Vienna Accord of 1994 and the Beijing Declaration and
the Platform for Action (1995) have acknowledged this. The United Nations
Committee on Convention on Elimination of All Forms of Discrimination
Against Women (CEDAW) in its General Recommendation No.XII (1989) has
recommended that State parties should act to protect women against violence
of any kind especially that occurring within the family.
2.The phenomenon of domestic violence is widely prevalent but has remained
largely invisible in the public domain. Presently, where a woman is
subjected to cruelty by her husband or his relatives, it is an offence under
section 498A of the Indian Penal Code. The civil law does not however
address this phenomenon in its entirety.
3. It is, therefore, proposed to enact a law keeping in view the rights
guaranteed under articles 14, 15 and 21 of the Constitution to provide for a
remedy under the civil law which is intended to protect the woman from being
victims of domestic violence and to prevent the occurrence of domestic
violence in the society.(Emphasis supplied)
Keeping these objects and reasons in mind to provide for more effective
protection of the rights of women guaranteed under the Constitution who are
victims of violence of any kind occurring within the family and for matters
connected therewith or incidental thereto, the bill was presented before the
parliament which has become the Act after passing the same by the
parliament. Thus, it cannot be lost sight of that the Act has been passed
keeping in view the rights guaranteed under articles 14, 15 and 21 of the
Constitution to provide for a remedy under the civil law which is intended
to protect the woman from being victims of domestic violence and to prevent
the occurrence of domestic violence in the society. Thus, basically the act
has been passed to provide the civil remedy against domestic violence to the
women. However, as provided by Sections 27 and 28 of the Act, a Judicial
Magistrate of the
first class or the Metropolitan Magistrate has been empowered to grant a
protection order and other orders and to try the offence under the Act. Vide
Section 28 of the Act, it is mentioned that save as otherwise provided in
this Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and
the offences under Section 31 shall be governed by the provisions of the
Code of Criminal Procedure, 1973. Vide sub-sections 3 and 4 of Section 19,
it is also provided that a Magistrate may require from the respondent to
execute a bond, with or without sureties, for preventing the commission of
domestic violence and such order shall be deemed to be an order under
Chapter VIII of the Code of Criminal Procedure, 1973 and shall be dealt with
accordingly. Chapter VIII of Cr.P.C. dealt with security for keeping peace
and for good behavior which runs from Section 106 to 124. In these Sections,
it is provided that for keeping the peace and maintaining good behavior, a
person can be directed by a Magistrate to execute a bond with or without
sureties and in case of non-compliance of such order, that person can be
detained into custody. Section 31 of the Act provides penalty for breach of
protection order passed by the Magistrate, which is punishable as an
offence. A protection order can only be passed under Section 18 of the Act.
To understand better the provisions of Sections 18 and 31 are required to be
perused, which are as under: -
Section18.The Magistrate may, after giving the aggrieved person and the
respondent an opportunity of being heard and on being prima facie satisfied
that domestic violence has taken place or is likely to take place, pass a
protection order in favour of the aggrieved person and prohibit the
respondent from-
(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of domestic violence;
(c) entering the place of employment of the aggrieved person or, if the
person aggrieved is a child, its school or any other place frequented by the
aggrieved person;
(d) attempting to communicate in any form, whatsoever, with the aggrieved
person, including personal, oral or written or electronic or telephonic
contact;
(e) alienating any assets, operating bank lockers or bank accounts used or
held or enjoyed by both the parties, jointly by the aggrieved person and the
respondent or singly by the respondent, including her Stridhan or any other
property held either jointly by the parties or separately by them without
the leave of the Magistrate;
(f) causing violence to the dependants, other relatives or any person who
give the aggrieved person assistance from domestic violence;
(g) committing any other act as specified in the protection order.
Section 31. (1) A breach of protection order, or of an interim protection
order, by the respondent shall be an offence under this Act and shall be
punishable with imprisonment of either description for a term which may
extend to one year, or with fine which may extend to twenty thousand rupees,
or with both.
(2) The offence under sub-section (1) shall as far as practicable be tried
by the Magistrate who had passed the order, the breach of which has been
alleged to have been caused by the accused.
(3) While framing charges under sub-section (1), the Magistrate may also
frame charges under section 498-A of the Indian Penal Code or any other
provision of that Code or the Dowry Prohibition Act, 1961, as the case may
be, if the facts disclose the commission of an offence under those
provisions.
The offence under Section 31 of the Act will be cognizable and non-bailable
as provided under Section 32 of the Act.
Section 8 of the Act provides for appointment of the Protection Officer and
Section 33 of the Act provides for penalty for not discharging duty by the
Protection Officer. Despite, as mentioned in the objects and reasons that
for providing a civil remedy, this act has been enacted, the provisions of
Sections 19, 27, 28, 31 to 33 clearly mention that some of the proceedings
under the Act are of criminal nature. Under Section 19 to 22 of the Act an
order to provide residential facilities, monetary reliefs, custody order for
a child and compensation can be ordered by the Magistrate under the Act.
Except a part of Section 19 with regard to direction of execution of a bond
and dealing the same as provided under Chapter VIII of the Cr.P.C., all the
reliefs under Sections 18 to 22 appear to be of civil nature. Thus, some of
the proceedings under this Act can be said to be of civil nature and some of
the proceedings can be said to be of criminal nature.
Section 12 of the Act provides that an application (not a complaint) for
seeking one or more reliefs under the Act can be filed. On perusal of
Sections 18 to 22 of the act, it appears that the reliefs under these
sections as mentioned herein above can be passed on the application under
Section 12 of the Act. The word complaint as appeared in the definition of
respondent under Section 2(q) of the Act has not been defined anywhere in
the Act. Although it is not provided that the definition of complaint can be
considered the same as provided under the Cr.P.C. but at the same time it is
also not prohibited. In view of this, the definition of complaint can
appropriately be seen in Cr.P.C. which goes as under :-
2(d) "complaint" means any allegation made orally or in writing to a
Magistrate, with a view to his taking action under this Code, that some
person, whether known or unknown, has committed an offence, but does not
include a police report.
It is clear by this definition that a complaint as provided in Cr.P.C. can
only be for an offence. As mentioned hereinabove only two offences have been
mentioned in this Act and those are (1) under Section 31 and (2) under
Section 33. It appears that this word complaint appeared in the definition
of respondent has been used for initiating proceedings for these two
offences and an aggrieved wife or female living in a relationship in the
nature of a marriage has been given a right to file a complaint against a
relative of the husband or the male partner. This word complaint cannot be
considered beyond the scope of the main provision of this Section which has
been defined in first part of Section 2(q) that is for any relief under this
Act. As provided in Section 31 of the Act, a complaint can be filed against
a person who has not complied with a protection order or interim protection
order.
Thus, it is clear by the definition of respondent that for obtaining any
relief under this Act an application can be filed or a proceeding can be
initiated against only adult male person and on such application or under
such proceeding, aforementioned protection order can be passed. Obviously
those orders will also be passed only against the adult male person. As
provided under Section 31 of the Act, non-compliance of a protection order
or an interim protection order has been made punishable and as such it can
be said that the complaint for this offence can only be filed against such
adult male person/respondent who has not complied with the protection order.
Hence, it is clear that the application under Section 12 of the Act which
has been filed by the respondent against petitioners No.3 and 4, who are not
adult male persons, is not maintainable.
(D)The proceeding has also been assailed on the ground that before issuance
of the notice, learned Magistrate has recorded the statement of the
respondent which is not required. It is true that recording of statements as
provided under Sections 200 and 202 of Cr.P.C. is not required before
issuance of the notice because application under Section 12 of the Act is an
application and not a complaint. However, this action of the learned
Magistrate cannot be a ground for quashing the proceedings because as
provided by sub-section 2 of Section 28 of the Act, the Court/learned
Magistrate is not prevented from laying down its own procedure for disposal
of an application under Section 12 of the Act.
(E) The proceeding has also been assailed on the ground that no report from
the Protection Officer under Section 12 of the Act has been called.
Sub-section 1 of Section 12 of the Act goes as under:-
12.(1) An aggrieved person or a Protection Officer or any other person on
behalf of the aggrieved person may present an application to the Magistrate
seeking one or more reliefs under this Act: Provided that before passing any
order on such application, the Magistrate shall take into consideration any
domestic incident report received by him from the Protection Officer or the
service provider; On perusal of the aforementioned proviso appended to the
provision, it appears that before passing any order on the application, it
is obligatory on a Magistrate to take into consideration any report received
by him from the Protection Officer or the service provider. Neither it is
obligatory for a Magistrate to call such report nor it is necessary that
before issuance of notice to the petitioners it was obligatory for a
Magistrate to consider the report. The words before passing any order
provide that any final order on the application and not merely issuance of
notice to the respondent/the petitioners herein. The words any report also
mention that a report, if any, received by a Magistrate shall be considered.
Thus, at this stage if the report has not been called or has not been
considered, it cannot be a ground for quashing the proceeding.
(F) The last ground raised by the petitioners is that in the application the
relief of penalizing the petitioners has been prayed for, which is beyond
the provisions of the Act. On perusal of the last paragraph of the
application, it is prayed that after registration of the case, petitioners
be legally penalized. It is true that at this stage in the application it
was not required for the respondent to claim such relief, however, if it has
been claimed, this cannot be a ground on which the proceedings can be
quashed. At the most, such reliefs if unnecessary, can be negated.
4. Although it is not argued yet it appears appropriate to mention that any
order passed by the learned Magistrate under the Act is appealable as
provided by Section 29 of the Act. Usually when an opportunity to assail the
impugned order in revision or appeal is available, taking recourse under
Section 482 of Cr.P.C. is not required. However, it is observed by the Apex
Court in para 26 in the case of Pepsi Foods Ltd. and another Vs. Special
Judicial Magistrate and others, (1998) 5 Supreme Court Cases 749 that some
time for immediate relief Section 482 of the Code or Article 227 may have to
be resorted to, for correcting some grave errors that might be committed by
the subordinate courts. Considering the steps taken by the learned
Magistrate against the petitioners No.3 and 4, this petition has been
considered herein.
5. In view of all, as discussed hereinabove, the petition deserves to be
partly allowed. Consequently, it is partly allowed. The proceeding against
petitioners No.3 and 4 is quashed. It is directed that the learned
Magistrate will deal the application as provided under the various
provisions of the Act and as observed hereinabove.

How to write a watertight will

How to write a watertight will

* Priyamvada Birla of the Birla family willed away her property to an outsider. The Birlas have been contesting the will in court since August 2004.
* Dhirubhai Ambani built a business empire that earns Rs 75,600 crore now, but seemingly didn't leave a written will. His two sons, Mukesh and Anil, are now fighting for pieces of the empire.
* Parveen Babi, an actress who lived a solitary life towards the end, left about Rs 4 crore, but no will. Now, people claiming to be her relatives are emerging from the woodwork.



They were the rich and famous of India. Thanks to what they have or haven't passed on, the harsh glare of arc-lights on them and their near ones refuse to die down even after they have passed away. And these are some of the most famous cases that have come to light recently. Across India, as in the rest of the world, countless people across generations are fighting over what they claim to be rightfully theirs. The aftertaste of all this is usually not pleasant.

Much of this clamour and unwanted glare can be avoided by leaving a simple and clear will. Had these rich and famous left a properly laid estate plan, or a will, so many across India wouldn't have lost their sleep for so long.

The cynic among us may say that disputes and displeasures are bound to happen to these people, because the pot of gold they left behind was worth the fight. But is it only the rich, those who have a veritable fortune to give away, who attract trouble? A glance around is enough to convince us that it's not so. Even the smallest of properties are contested for. Also, wouldn't you like your near ones to be left in peace?

Some typical responses from those who aren't inclined to write a will are: "I hardly have much money to will away", or "I am not old enough to write a will". It doesn't matter how much we have or how old we are, given the realisation that we don't know when death would strike. Our parrying has to do with the way we take to death. We procrastinate, ironically bringing us closer to death before we have had a chance to set things in order.

But we, too, shall pass. A carefully drafted will will go a long way in ensuring that those who would cherish your memory do so in tranquillity and warmth. Here's a guide to making an incontrovertible will.

Making a Legal Will
The Indian Succession Act, 1925 governs wills in India. It doesn't tell you any format for preparing what would be considered a legal will. But the actual job of writing a will could be simple. It can be as short as a few words - say, "All to wife" - or you can detail it over several pages. You can write it on plain paper in the manner you want. Some are even allowed to make oral wills - Armed Forces personnel engaged in war or at sea, mariners at sea, and Muslims, who are governed by Muslim personal law.

A will must be signed or marked by a thumb impression of the testator, the person making it, and must be attested by at least two witnesses, who can later verify that the will was signed voluntarily and in their presence.
Heinrich Heine,
18th century German Romantic poet

Then there are the details you need to heed if you want to make the will watertight. Lawyers advise that the signature or thumb impression be placed in a manner that indicates that there was an intention to sign the will - in other words, that the person wasn't in any doubt about the will. If the text of the will finishes at the end of a page and the signatures are on the next page, which doesn't contain any part of the will; its sanctity can be disputed.

The selection of the witnesses, those who will have to stand by the authenticity of the will, is important. It's easier to choose a close relative or friend. But if a witness or his spouse is a beneficiary of the will, the bequest to that person will not be valid. It's also desirable to have a witness who is younger, so that he can outlive the testator. A doctor's name as a witness lends some weight.

There is no need under law to register a will. The registration of a will, by itself, doesn't make it genuine. Priyamvada Birla's will, which is registered, is still being contested in court for its authenticity, among other things. "A will without registration is of equal value [as compared to a registered one] in the eyes of the law," says Arun Khosla, a senior advocate based in Delhi. Nonetheless, registration is recommended because it confirms the legality and ensures that a safe copy is kept.

For getting a will registered, the witnesses should accompany the testator to the registrar's office. If the testator can't travel, the will can be signed at a place convenient to him. Once signed, it can be kept in the custody of the registrar. During the lifetime of the testator, nobody except him or his agent is allowed to obtain a copy of the will. After the testator's death, anyone can get a copy of the will by submitting a copy of the death certificate.

Giving What, And To Whom
You are free to make a will for all kinds of movable and immovable property owned by you. Apart from land, cash and household belongings, property could consist of investments in shares, fixed deposits, and so on. If you have a joint family property, you can bequeath only your share, not the whole of it.
Napoleon Bonaparte,
Emperor of France, 1857

Apart from tangible assets, you can also pass on things of negligible monetary value that you have cherished and would want to be preserved - say, your old vinyl records. These may be of little value for anyone else to claim a stake, but because they are of great meaning to you there is no harm in deciding their future keeper too.

Mind you, the law doesn't give you complete freedom in deciding the heirs themselves. Under the Hindu Adoption & Maintenance Act, 1956, the specified dependants of a Hindu testator are permitted to claim maintenance allowance from his property, even though his will may not bequeath anything to such dependants. So a widow, minor children, unmarried daughters and parents of the testator can claim maintenance if they aren't financially sound.

A Muslim can will away only a third of his net assets. The rest of his property has to be distributed among heirs according to rules specified by the All India Muslim Personal Law Board, which interprets religious or traditional laws for the community. However, if all the heirs agree, the one-third limit can be exceeded, and whatever is left can be distributed in favour of any of the heirs. The idea is to give all legal heirs their due rights.

Avoiding Disputes
An ambiguous or incomplete will can spell more trouble than not having a will at all. Of course, you will seek the help of your lawyer in the process. But it's for you, too, to ensure that succession should happen in the manner desired. The best way is to write the will in a simple language, leaving no scope for ambiguity. It's recommended that you write the will in a language you have always known.

In the beginning, mention clearly whether it's your first or last will, and if it's not the first, whether the previous will(s) would stand cancelled.

Lawyers say that the most common ground for contesting a will is by trying to prove that the testator was not of sound mind or in stable condition at the time of making the will. To avoid such an objection, make a clear statement that you are making a will in your normal state of mind and without any pressure from anyone. This is where a doctor, as a witness, can acknowledge your sound state of mind. The other way out is to start making a will early in life, which would make it much more difficult to prove that the testator was not of sound mind than if the will is written when he is much older.
The Morals With The Mores

You pass on to your family the wealth you have accumulated over your life, hopefully making them financially secure. But throughout your life you may have held certain values to be more sacrosanct than wealth - how will you transfer those? You may have strictly kept away from liquor and tobacco. You may have been a follower of a spiritual guru, who was a guide too. Or you may have great lessons that you learnt from the mistakes made in your life. Under law, you can't force your inheritors to subscribe to any of these views perforce. But wouldn't you like to pass on some of these values and experiences to your children or grandchildren? If you do, the ethical will is the way to go.


Ethical wills originated as a Jewish tradition around 3,000 years back. Jews used to write such wills to impart instructions of ethical and religious nature to their descendants. An excerpt from a 13th century Jewish will gives interesting insights into their traditions: "I earnestly beg my children to be tolerant and humble to all, as I was throughout my life. Should a cause for dissension present itself, be slow to accept the quarrel; seek peace and pursue it with all the vigour at your command. Even if you suffer loss thereby, forbear and forgive, for God has many ways of feeding and sustaining His creatures."

Ethical wills aren't accepted as legal documents that can be enforced. So no witness or probate is needed. It is a way to share your values, lessons, feelings, or even make confessions to family members. You would have toiled to impart the best possible education to your children, to imbibe in them your family's values, and to build a rich estate they can enjoy. Once you aren't there, the estate will go to them. But the legacy of the values and experiences that founded the property may fade from their memory. Now you know how you can keep them alive.

Then, detail every property you wish to pass on. Mention everything categorically - name of banks, branches, account numbers, fixed deposit numbers, sale deeds of immovable property like land or house, and the value of these assets (as on a particular date). We go back to the Birla will - in it, Priyamvada didn't mention the value of her legacy, but reports put it at Rs 5,000 crore. BW calculations showed that her legacy would be worth Rs 1,200 crore or so.

Often, wills are also contested on the ground that the person didn't have the property in the first place to will it away. That is, he didn't have title of ownership to the property. If this can be proved, the will would be void. So it's better to attach a copy or the proof of ownership, too.

Then define the legal heirs to whom you want to pass on. Mention what part of the estate goes to whom and in what quantity. In case one of the heirs - say, one of your two sons - gets a larger share, state why you wish to give him more. Why has been the other one deprived of your estate? Was it his misconduct that discouraged you? If the reasons are mentioned in the will, the deprived heirs will be on a weak footing if they wish to contest it in future. Besides, if there is anyone (not necessarily a blood relation) who rendered services you wish to repay through the will, do mention the name of such heirs. Under the law of succession, this kind of a relation will not be covered as a legal heir.

If no will is made, the deceased's property will be divided among the legal heirs as laid out in the Hindu Succession Act, 1956. Apart from Hindus, the Act governs Buddhists, Jains and Sikhs. The Indian Succession Act, on the other hand, governs followers of all other religions, except Islam. By any of these laws of succession, if some of the legal heirs do not object, the others can get the property in their name by proffering a no-objection certificate.

Where the stakes involved are huge, it is advisable to have more than one executor to ensure that the will is properly enforced.

One of the lesser known ways of ensuring a indisputable will is keeping a video recording of the testator making the will in presence of witnesses. It is well accepted in courts of law these days. "But it doesn't give full guarantee that it was written without undue influence. It is assumed that a sound state of mind of the testator will be visible, but the undue pressure may not be reflected in the video clipping," says Jayashree Shukla, an advocate practising with Dhir & Dhir Associates.

Lawyers warn that almost every will is contested. Indeed, property stokes a deep instinct in most humans, urging to get for themselves even what isn't deemed theirs. And the law lets them, too. "This [challenge of a will] is the lengthiest possible litigation, as it calls for so many witnesses in order to contest the will," says Arun Khosla. "And unlike other litigations, there is no moratorium as to when the will can be challenged." He cites an example where a son contested his father's will 42 years after his death.

Another case may arise. If the property you pass on to, say, your son through the will was nominated to your wife, then who gets it? On various occasions, courts have held that the nominee doesn't become the owner of the property. He or she is just entrusted with its custody. So if the legal heir is different from the nominee, then the will will have its way.

Where There's No Will
The very essence of a will is that you may not like to entrust your estate to all your family members. But if there isn't any, your estate will be distributed equally among the legal heirs according to the laws governing succession (mentioned above).
Philip Thicknesse,
Esquire, Bologne in France,1796

Your self-acquired property, as well as your share in ancestral or joint-family property, will be first divided equally among the Class I heirs. They include wife, sons, daughters, and the specified heirs of a son or daughter who has already passed away. If there are no Class I heirs, it will devolve equally upon the class II heirs - father and the grandchildren of your son or daughter.

However, even today, the laws of natural succession in India favour the male heirs over the female ones. In addition to their share in the father's share of a joint-family property, they have a direct right to such a property, while female heirs have right in their father's share only. But this may change soon. A Bill pending in Parliament seeks to amend the Act to give equal rights to female heirs.
Elizabeth Orby Hunter,
Baroness of Lincolnshire, 1813

However, succession in this way isn't always easy. There can be disputes - heirs can get relinquishment deeds (giving up their shares) signed from other heirs, and so on. Also, one needs to get a succession certificate from the court for getting the property transferred in his name. Getting a succession certificate can take long and entail charges in terms of stamp duty and court fees.

Making Changes
For various reasons, you may need to keep on updating your will from time to time. You may want to do so if you'd written the first one at a young age, or if your relations with some of the heirs has changed substantially, or there's some more property to give away. The changes can take the form of a Codicil, an appending document that can consist of minor additions, deletions or alterations to the original will. A will should be updated even if the value of the assets changes.

The Codicil, like the original will, has to be attested and executed the same way. If the original will is revoked or cancelled, it doesn't lead to an automatic revocation of the Codicil. Its sanctity would hold unless the testator intended to cancel the Codicil while cancelling the original will.

Ensuring Execution
Here comes the role of an executor, who should be mentioned as such in the will. Again, like for witnesses, an executor must be appointed with great care, because he is the person authorised to ensure that your will is carried out. Therefore, he should ideally be a trustworthy person, younger in age so that he outlives the testator.
David Davis,
angry husband in Clapham, England, 1788

The law confers on him the responsibility of being a legal representative who will collect money from the debtors of the testator, pay off his debts, and then distribute the residual property in the prescribed manner. What enables him to do so is the probate document, which is issued to the executor. This document is the copy of the will certified by court. It's important to obtain a probate, as without it, the beneficiaries cannot establish their rights to the property.

In some states you need a probate, while in the others a no-objection certificate from the legal heirs would do. The Indian Succession Act says it's necessary to obtain a probate if the case falls under the state of West Bengal or the high courts of Mumbai and Chennai. For the other states, you would need a probate if the ruling high court makes it mandatory.
John Moody ,
boot maker, to a Baronet with political aspirations, 1806

To obtain a probate, the executor has to file an application with the court. It has to mention a proof of death, that it was the last will, that he was named as executor in the will, and the amount of assets which will come in his hand. Apart from the executor's or the beneficiary's signature and their verification, one of the witnesses is also required to verify it. On receiving it, the court will ask the family members to file their objections, if any. After the objections are sorted, the probate is granted to the executor. This is the process that usually drags on and may involve substantial costs, too. Stamp duty, as a certain percentage of the total estate, has to be paid to the court. It could be a beneficiary who has to bear the costs. If the beneficiary is a minor, the person appointed as the guardian will have to bear the costs.

If an executor is not mentioned in the will, it can be sorted by an administrator appointed by the court.

Limiting Tax Burden Of Beneficiaries
A will can be made in a manner that minimises the tax incidence of the beneficiaries.

If you pass on an estate not to your heirs individually, but to a Hindu undivided family (HUF), then such a transfer will be treated separately under the tax laws. Otherwise, if the property is transferred to an individual heir, it will be taxed in his hands. Therefore, transferring some of the property to the HUF of your heirs can save on individual incidences of tax.

There's yet another way. You can create a private trust by transferring some assets to it. As a separate legal entity, under the present tax laws, its income up to Rs 50,000 would be exempt, provided the beneficiaries of the trust don't have their own taxable incomes and do not receive income from any other trust. If the beneficiary is a minor, then, too, assets can be transferred to a trust with the condition that the income from it be accumulated and given to him on coming of age. This way, the minor's income will not be taxed in the hands of the parents.

But don't break your head over how to save taxes - that, after all, isn't the main consideration when you write your will. Sudhir Malik, a Delhi-based chartered accountant, says: "Taxes shouldn't come in the way of passing on your estate in a manner you would like to." Passing it on is the first and the most important point.

The question you should ask yourself is: would you like your loved ones to run around to claim inheritance, or would you want them to inherit the fruits of your labour peacefully? If you opt for the latter, now is the time to write your will.