Section 381 in High Court of Chhattisgarh Rules, 2005
381.
(1)Definitions. - In these rules, unless the context otherwise requires : -(i)'the Act' means the Indian Succession Act, 1925, as from time to time amended or modified.(ii)'Registrar' means the Registrar of the High Court, or such officer of such Court as may be authorized by the Chief Justice to perform such duties as are by these rules assigned to the Registrar;(iii)'Will' includes a codicil.(2)Non-contentious business. - Non-contentious business shall included the business of obtaining probate and administration (with or without the Will annexed, and whether general, special or limited) where there is no contention as to the right thereto, including the passing of probates and administrations through the Court in contentious cases when the contest is terminated, and all ex-parte business to be taken in the Court in matters of testacy and intestacy not being proceedings in any suit and also the business of lodging caveats against the grant of probate of administration. It shall also include the business of obtaining succession certificate and extension of such a certificate.(3)Application-How to be written and presented. - An application for probate or letters of administration, or succession certificate shall be accompanied with an affidavit and shall comply with the provisions regarding filing procedure, registration and listing of cases and shall be registered as Miscellaneous Civil Cases.(4)Application for Probate. - Application for probate shall be made with the Will annexed. If the Will is not in English it shall be translated into English by the official translators of the Court at the cost of the applicant for which he shall make a separate stamped application. The application for probate shall be in the prescribed format in the schedule or as near thereto as the circumstances of the case may permit, and shall be accompanied by -(i)an affidavit of one of the attesting witnesses, if procurable (in the prescribed format),(ii)an affidavit of valuation in the form set forth in Schedule 3 of the Court-fees Act, 1870, and(iii)a Schedule of property of the deceased (in the prescribed format).(5)Application for letters of administration. - Application for letters of administration shall be made in Form No. 4 or as near thereto as the circumstances of the case may permit and shall be accompanied by annexures (b) and (c) mentioned in the last preceding rule.(6)Application for letters of administration with the Will annexed. - Application for letters of administration with the will annexed shall be made in the prescribed Format or as near thereto as the circumstances of the case may permit. It shall be set out the names and addresses of the legal representative of the deceased (unless the Court sees fit to dispense with the statement thereof), and shall be accompanied by the annexure referred to in rule 5.(7)(i)Application for succession certificate. - Application for succession certificate shall be in the prescribed Format or as near thereto as the circumstances of the case may permit, and shall be accompanied by a Schedule of the property of the deceased. It shall also be accompanied by a petitioner's undertaking as specified in the prescribed Format or as near thereto as the circumstances of the case may permit.(ii)Where an application for a grant of representation such as probate, letters of administration or succession certificate is applied for within six months of the death of the deceased, the executor of the deceased shall annex to the affidavit of valuation to be filed in Court under Section 191 of the Court Fees Act, 1870, an account of all the property in respect of which estate duty is payable upon the death of the deceased.(8)Certificate that no other grant has been made. - Within 14 days of the filing of the application for probate or letters of administration, the Registrar shall certify (if such be the case) that no intimation has been received by the Court from any other High Court or District Court of any grant of probate or letters of administration of the property and credits of the deceased having effect throughout the territory of India. Such certificate shall be made on the order sheet, and shall in the prescribed format.(9)Certificate as to Court fee. - No order for the issue of a grant of probate or letters of administration or succession certificate shall be made until after the Registrar has been paid or that no court-fee is payable. Such certificate shall be made on the order-sheet and shall be in the prescribed format.(10)Delay in application. - In any case whether probate or administration or succession certificate is for the first time applied for after the lapse of three years from the death of the deceased, the reason of the delay shall be explained in the petition. Should the explanation be unsatisfactory, the Registrar may require such further proof of the alleged cause of delay as he may deem fit.(11)Proof of identity. - The Court may, in cases where it deems it necessary, require proof, in addition to the usual statement required to be made in the petition, of the identity of the deceased or of the party applying for the grant.(12)Inter lineations, alterations etc., in the Will should be sworn to by the attesting witness. - When inter lineations, alterations, erasures or obliterations appear in the Will (unless duly executed as required by the Indian Succession Act or recited in or otherwise identified by the attestation clause), a statement shall be made in the affidavit of the attesting witness whether they existed in the Will before its execution or not.(13)In absence of attesting witness what other evidence must be produced. - If no affidavit by any of the attesting witnesses is procurable, an affidavit shall be procured, (if possible) from some other person (if any) who may have been present at the execution of the Will, but if no affidavit of any such person can be obtained, evidence on affidavit must be produced of that fact and of the hand writing of deceased and one attesting witness and also of any circumstances which may raise a presumption in favour of due execution.(14)Attempted cancellation must be accounted for. - Any appearance of an attempted cancellation of testamentary writing by burning, tearing, obliteration or otherwise, and every circumstances leading to a presumption of abandonment or revocation of such writing or part thereof, shall be accounted for.(15)Unsigned or unattested Will. - In cases in which it is not necessary that a Will should be signed by the testator or attested by witnesses to constitute a valid testamentary disposition of the testator's properly the testator's intention that it should operate as his testamentary disposition must clearly be proved by an affidavit.(16)Renunciation. - No person who renounces probate of a Will or letter of administration of the property of a deceased person in one character shall without a leave of the Court, take out representation to the same deceased in another character.(17)Application for administration by a creditor. - In all applications by a creditor for letters of administration, it shall be stated particularly how the debt or debts arose, the amount due on the date of the application, and whether the application has any and what security therefor.(18)Production of deed paper, etc. referred to in Will. - If a Will contains a reference to any paper memorandum or other document of such a nature as to raise a question whether it ought not to form a constituent part of the Will, such paper, memorandum or other document should be produced with a view to ascertaining whether it is entitled to probate, and where not produced, its non-production must be accounted for.(19)Persons consenting to an application for letter of administration must do so on affidavit. - Persons desiring to give their consent to an application for a grant of probate or for letters of administration or for succession certificate must do so on affidavit, stating their relationship to the deceased and that they consent to such a grant.(20)Citation to rightful parties. - On an application for probate or for letters of administration, unless otherwise ordered by the Judge or Registrar a citation shall issue to all persons having a right to take the grant prior or equal to that of the applicant, unless such persons have signified their consent to the application.(21)Citation on application by creditor. - Where letters of administration are applied for by a creditor, a special citation shall be issued to the widow, if any and the next of kin, provided they shall be resident within the jurisdiction or have any known agent or agents resident within the jurisdiction, and to the Administrator General of Chhattisgarh, and a general citation shall be issued to all persons claiming to have any interest in the estate of the deceased.(22)Citation. - All citations shall unless otherwise ordered, direct the persons cited to show cause on such day certain as the Court shall direct, and shall be in the prescribed format and where they cannot be served in the manner provided for service of process, may be served by the insertion as an advertisement in such newspapers as may be directed, of a notice in the prescribed format.(23)Proof of Publication. - Proof of due publication of a citation by advertisement shall be by affidavit, unless the Court has directed that such citation be published once only in a single newspaper in which case a copy of the issue of the newspaper containing the said advertisement may be filed in lieu of an affidavit.(24)Proof of power of attorney. - Unless a power of attorney constituting such attorney or the attorney of an executor absent from the State of Chhattisgarh can, under Section 85 of the Indian Evidence Act, 1872, be presumed to have been executed and authenticated as in the said section mentioned; the Court may require further proof of its due execution.(25)Grant when to have effect in Chhattisgarh. - All grants of probate or Letters of Administration (with or without the Will annexed) other than grants under the administrator-General's Act, shall unless otherwise ordered, be drawn up by the Court to have effect within the Chhattisgarh.(26)Grants when to have effect throughout India. - In all cases in which it is sought to obtain a grant of probate or letters of administration (with or without the Will annexed) to have effect throughout the territory of India, or under the Administrator-General's Act to have effect throughout one or more of the other Divisions as defined in that Act, such grant must be expressly asked for and it must be shown where the assets are situated.(27)Two common sureties to the bond required. - In all cases of letters of administration save and except under section 241, Indian Succession Act, 1925, unless the deceased is a Hindu, Mohammadan, Buddhist, Sikh or Jain and in case of succession certificates which in the opinion of the Court fall under sub-sections (3) and (4) of section 373, two common sureties are required to the administration bond in each case shall, unless otherwise ordered by the Court, be given in double the amount of the property for which the grant is to be made. The bond shall be given to and in the name of the Chief Justice, and shall be, as nearly as possible, in the prescribed format.(28)Justifying surety. - When any person takes out letters of administration in default of the appearance of any person, cited, and when any person takes out letters of administration or succession certificates for the use and benefit of a lunatic, or person of unsound mind (unless he be a committee of the estate of such lunatic, appointed by the Court), or for the use and benefit of a minor (unless he be a guardian of the property of such minor appointed by the Court), surety or sureties to the bond must justify for the whole amount of the estate. And when any person entitled to a portion only of the estate takes out letters of administration, or succession certificate the sureties to the bond must justify for the whole estate less the share of petitioner and such shares as shall contest by writing thereto. The Court hearing testamentary matters may, however in a proper case and for reasons to be recorded in writing, dispense with the Jurisdiction of surety.(29)When such a bond has been filed the Court shall direct the surety to be tested, either by the Registrar or by the District Judge within whose Jurisdiction the immovable property is situate.(30)Insurance Companies as Sureties. - An approved Insurance Company may be accepted in place of two common sureties under rule 27, and as justifying surety under rule 28, and in such cases, the bond shall be given only for the amount of the property for which the grant is to be made. The bond given by the Company shall be as nearly as possible, in the prescribed format.(31)Consequences of neglect to proceed with petition or to furnish security. - If a petitioner for a grant of probate, letters of administration, or succession certificate, for three months from the admission of the petition neglects to proceed with the petition, or for three months of the date of the order for grant neglects to give the required security or otherwise to proceed with the application or to take out the grant, the Registrar shall give notice in writing of his default to the Administrator-General, who may then apply to the Court for an order that the petition be dismissed and that he may be at liberty to apply for a grant of letters of administration.If no further steps are taken in the matter, the petition may be posted before the Court for dismissal, and the Court may thereupon make such order as it thinks fit.(32)Schedule of property to accompany certificate under Section 274 of the Indian Succession Act or section 24 of the Administrator General's Act. - With every certificate to be sent to a High Court, under the provisions of section 274 of the Act, or section 24 of the Administrator General's Act, 1913, the Registrar shall send a copy of so much of schedule of the property and, credits of the deceased as relates to the estate within the jurisdiction of such Court.(33)Amendment of grant extend to India. - A grant under the Indian Succession Act, 1925, limited to the State of Chhattisgarh, may be amended on the Court's order so as to extend its effect throughout India. The application shall be by affidavit stating where the additional property and credits are suitable, and on payment of the probate duly payable in respect thereof, and in case of grant of letters of administration with or without the Will annexed, on the petitioner giving a further bond, the grant may be amended accordingly.(34)Application for extension of Succession Certificate. - The Court may extend a succession certificate to any debt or security not originally specified therein. Application for such extension shall be by a petition with all accompaniments mentioned in rule 8, stating the particulars of the debt or security and on the payment of duty payable in respect thereof and on the petitioner giving a further bond, if required, the certificate may be extended.(35)Inventory and account. - The inventory and account to be furnished by an executor or administrator under section 317 of the Act shall be in the prescribed formats and shall be verified in the following manner:'I................the executor (or administrator), named in the above inventory, do hereby declare that the said inventory is in every respect true, perfect and correct to the best of my knowledge, by information received from............. and believed to be true, and that the same contains a full, true and perfect inventory of all the property in the possession of the decease at the date of his death and of all credits owing to him, and of all debts owing by him; or'I...........the executor (or administrator), named in the above account, do hereby declare that the said account is true, perfect and correct to the best of my knowledge, by information received from and believed to be true and that it gives a full, true and perfect account of all the estate and effects of the deceased which has or have come into my hands, possession power, control, custody or knowledge and of the deposition of the same.'(36)Probate of Will of married woman or letter of administration etc. - In grant of probate of the Will of a married woman, or of the Will of widow made during converture, or letters of administration with such Will annexed, it shall not be necessary to recite, in the grant or in the oath to lead same the separate movable property of the testatrix or the power or authority under which the Will has been or purports to have been made. The probates or letter cases shall take the form of ordinary grant of probate or letters of administration with the Will annexed without and exception or limitation, and issue to an executor or other person authorized in usual course of representation to take the same.(37)In case of doubt or difficulty in any non-contentious matters, the Registrar may obtain the direction of the Court or call upon the petitioner to move the Court for direction, when an application is on file.Contentious Business(38)Caveats. - Any person intending to oppose the issuing of a grant of probate, or letters of administration must, either personally or by his advocate, file a caveat in the office of the Additional Registrar or Deputy Registrar in the prescribed format. No caveat shall effect any grant made on the day on which the caveat is filed. Notice of the filing of the caveat shall be given by the Registrar to the petitioner or his advocate in the prescribed format.(39)Affidavit in support of Caveat. - Where a caveat is entered after an application has been made for a grant of probate or letters of administration with or without the Will annexed the affidavit or affidavits in support shall be filed within fourteen days of the caveat being lodged. Such affidavit shall state the right and interest of the caveat, and the grounds of the objection to the application.(40)When caveat is entered before application for grant is filed. - Where an application for grant of probate or letters of administration with or without the Will annexed is presented after a caveat has been filed, the Registrar shall forthwith issue notice to the caveator, calling upon him to file his affidavit or affidavits in support of his caveat within fourteen days from the service of such notice.(41)Consequence of non-compliance. - Where the caveator fails to file any affidavit in support of his caveat in compliance with rule 40 or in compliance with the notice issued under rule 41, the caveat may be discharged by an order to be obtained on application to the Court.(42)Conversion of application into suit. - Upon the affidavit in support of the caveat being filed (notice whereof shall immediately be given by the caveator to the petitioner), the proceedings shall be numbered at a suit in which the petitioner for probate or letters of administration shall be the plaintiff, and the caveator shall be the defendants, the petition for probate or letters of administration being registered as and deemed a plaint filed against the caveator, and the affidavit filed by the caveator being treated as his written statement in the suit. The procedure in such suit shall as nearly as may be, according to the provisions of the Code of Civil Procedure, 1908.(43)Proof in solemn form. - The party opposing a will may, with his affidavit give notice to the party setting up the Will that he merely insists upon the Will being proved in solemn force of law, and only intends to cross-examine the witnesses produced in support of the will, and he shall thereupon be at liberty to do so, and shall not, in any event be liable to pay the cost of the other side, unless the Court shall be of opinion that there was no reasonable ground for opposing the Will.(44)Trial on preliminary issue. - The Court may, on the application of the petitioner before directing that the proceedings be numbered as a suit direct the trial, of an issue as to the caveator's interest, upon the trial of such issue it appears that the caveator has no interest, the Court shall order the caveat to be discharged, and may order to the issue to probate or letters of administration, as the case may be.(45)Notice of application to whom to be given. - The Registrar shall give notice of grants of certification for probate or letters of administration to the Chief Revenue Controlling Authority, and the Collector of the district within one week after the admission of the application.(46)Disposal of petitions for non-prosecution. - All Testamentary petitions in which grants or certificates are not issued, owing to non-prosecution of the petitions for two years after the petitions have been filed, shall be treated as disposed of, and no action shall be taken in such petitions, unless a fresh petition is filed or an order obtained from the Testamentary Judge (in Chambers), giving permission to the petitioner to proceed with the petition already filed.(47)Administrator General's Act. - Nothing in the rules in this Chapter shall apply to application or acts to be done by the Administrator-General, in so far as they conflict with the provisions of the Administrator-General's Act.H. Rules under Sections 14 and 21 of The Hindu Marriage Act, 1955(Act No. XXV of 1955)
