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Article Published in the Express Magazine Dated
March 11, 2001
General Attorney : Rajiv K. Luthra
A person has executed a registered Will.
However, before his death, he makes a fresh Will
or makes a Codicil. This fresh Will, cancelling
the earlier Will, is not registered. In the event
of the death of the executant, which Will shall
prevail? Will the codicil be legal?
Rammilan G. Shukla, Mumbai
The registration of a Will is a not compulsory
legal requirement and therefore, is equally
efficacious whether it is registered or not. Even
the Hon'ble Supreme Court has upheld that there is
no legal impediment to an unregistered Will.
Ideally the last Will of the testator should hold
good since the testator has the option of revoking
and executing a fresh Will, any time during his
life time. The mere fact that the Will is not
registered does not tell against its genuineness.
Non-registration of the Will, by a testator may be
done to avoid publicity of the arrangement made,
or to avoid expenses or any other reason. The
issue of non-registration of a Will can assume
importance when it exists with some suspicious
circumstances. It is true that registration, by
itself, in all cases, is no proof of execution.
Registration does not dispense with the necessity
of proof of execution when the same is denied. But
if no other evidence is available, the certificate
of registration is prima facie evidence of its
execution and the certificate of the registering
officer under section 60 (2) of the Registration
Act, 1908 is relevant for proving execution. As
regards your second query, the Indian Succession
Act, 1925 defines a codicil as a sort of an
annexure to the original Will, containing the
testators amended intention to revoke a Will or to
modify or change it otherwise. Being part of the
Will and executed in the same mode as a Will, a
codicil is a legal document.
I am into business and am interested in setting
up my own private limited company. In this regard
I would be grateful if you could highlight the
various modalities for setting up such
incorporation.
Gaurav Puri, Delhi
For incorporation of a company, first you have to
submit an application for approval of the name of
the proposed company with the Registrar of
Companies. This application for approval of the
name of the proposed company has to be made in
Form-1A accompanied with fees of Rs. 500/-. The
form inter-alia contains details of activities of
the proposed company, authorised capital and
proposed promoters/directors. The private company
shall have a minimum paid-up capital of Rs. 1
lakhs and at least two directors. After approval
of the name of the proposed company, you have to
submit the following documents with the Registrar
alongwith the registration and filing fees within
six months from the date of name approval: (i)
Statutory declaration by an authorized person in
Form 1 to be executed on a non judicial stamp
paper of appropriate value; (ii) Copy of letter of
Registrar indicating approval of name; (iii)
Notice of address of registered office in Form 18;
(iv) Particulars of Directors in Form 32; (v)
Powers of Attorney from the subscribers
authorizing any one person to act on their behalf
at the Registrar's office. (vi) The Memorandum and
Articles which are required be stamped as per the
Indian Stamp Act or the relevant State Act and be
signed by at least two subscribers and witnessed
by one person.
The Registrar after scrutinizing the documents
shall register the company and issue a certificate
of incorporation. A private limited company can
commence business and exercise borrowing powers
immediately after obtaining a certificate of
incorporation
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