|
|
|
|
 |
 |
|
|
Article Published in the Express Magazine Dated
August 10, 2003
General Attorney : Rajiv K. Luthra
Can a written statement filed along with an
affidavit, before a court or any appropriate
authority, be replaced with a new written
statement and a new affidavit in the same case on
the same facts, if the deponent intends to change
his stand completely and certain facts need to be
presented before the court which he has not stated
at all in the old written statement?
Priyanka, Delhi
A written statement and an affidavit filed before
a court can be amended with the permission of the
court. In terms of Order VI, Rule 17, of the Code
of Civil Procedure, 1908 (CPC), the court may at
any stage of the proceedings allow either party to
alter or amend the pleadings, which include the
written statement and the affidavit therewith, in
such manner and on such terms as may be just, and
all such amendments shall be made as may be
necessary for the purpose of determining the issue
in between the parties.
No application for amendment shall be allowed
unless the court comes to the conclusion that in
spite of due diligence, the party could not have
raised the matter before the commencement of
trial. However, the courts have held in a number
of cases that the parties may not be permitted to
completely change their stand subsequently.
I am an NRI and a Person of Indian Origin. I
would like to buy certain property for commercial
use from an Indian citizen. I would like to know
whether I should take any express permission from
the RBI? Could you also indicate as to whether the
seller, who is an Indian citizen, is required to
take any permission from the RBI or from the
Government?
Altaf Contractor
The acquisition and transfer of immovable property
in India is governed by the Foreign Exchange
Management (Acquisition and Transfer of Immovable
Property in India) Regulations, 2000
(‘Regulations’). In terms of Regulation 3 of the
Regulations, an Indian Citizen resident outside
India may acquire any immovable property in India
other than agricultural/plantation/farmhouse.
Likewise, in the case of a Person of Indian
Origin, Regulation 4(a) states that a PIO may
acquire any immovable property other than
agricultural land/farmhouse/plantation property in
India by purchase, provided that the acquisition
is made out of (i) funds received in India by way
of inward remittance from any place outside India,
or (ii) funds held in any non-resident account
maintained in accordance with the provisions of
the Foreign Exchange Management Act and the
regulations made by the RBI thereunder. Since you
are also a PIO, the stipulation as to the source
of funds will apply in your case.
In terms of the Regulations, no specific
permission is required for purchase of commercial
property either on the part of the seller or the
purchaser as indicated in your case. However, if
an NRI is using the property in connection with
any business or professional activity, a prior
permission from the RBI is required under the
Foreign Exchange Management (Establishment in
India of Branch or Office or Other Place of
Business) Regulations, 2000.
My father made two wills in respect of his
self-acquired property before his death, in which
he mentioned names of his two sons only, and kept
out the other two sons by giving valid reasons.
After his death, we have been told by our lawyers
to take a ‘probate’ of the will. I would like to
know whether a will could be executed only after a
probate is obtained and whether the other two sons
who have been left out can get their share in the
property through court, if we do not get the will
probated? Please advise.
Rajiv, Delhi
A duly executed and properly witnessed will by two
witnesses will override previously executed will.
The will need not be registered for being valid.
Probate proceedings are instituted for seeking and
declaring the validity and genuineness of a will.
Probate is a conclusive evidence of the validity
and due execution of the will and of the
testamentary capacity of the testator.
The validity of a will could be challenged by the
ousted legal heirs in a probate proceeding as well
as in a suit for declaration praying that the will
be declared null and void. However, the party
asserting the objections bears the burden of
establishing that the will is forged or illegal. A
will can be executed even without taking a
probate. However it is advisable to obtain a
probate of the will for the purpose of mutation of
the property in the revenue records.
|
|
| |
|
|
|
|
|
