Probate of a Will

The Courts are extremely cautious while granting Probate of Will and call for assistance for its satisfaction on all points, big or small. In a recent case we had to deal with the following objections and how we dealt with them.

• Witness & Attesting Witness - When the matter came for final arguments, the Hon’ble Judge raised an issue that the Will has not been properly attested in terms of Section 63 (c) Indian Succession Act, 1925 because in the Will the Witness has been described as merely 'WITNESS' and not as 'ATTESTING WITNESS' which would signify in whose presence the Will in question has been executed. In answer to the Court's query we pressed into assistance two judgments, one of Hon’ble Supreme Court reported as AIR 1977 SC 63 AND another of Kerala High Court reported as AIR 1994 Ker 85 wherein it has been clearly stated that “labeling is no statute necessary and the mere description of a signatory to a testamentary document as an attesting witness cannot take place of evidence showing due execution of document.”
• Wife continues to use Maiden Name - The next issue was “why the testator has written in his Will my Wife and then first name only and she continues to use her original surname and not the surname of her husband even after so many years of the marriage. In answer to this we produced the Passport of wife as well as of her late husband to prove the marital status of the Petitioner and the Testator. In addition we also placed on record Marriage Card and Photographs.
• Children using another Surname - The next issue came with respect to the surname of the Children who have adopted another surname, other than what their late father was using. Complicated right, late father has another Surname, Wife continues to use her maiden name and surname and Children have adopted a different surname. Even our head spinned but the authenticity of this was never in question and we readily placed on record the copies of Passports of Children and their Matric and Higher Secondary School certificates which proved their lineage. This was insisted on the Court despite the fact that the Testator (deceased) had named his wife as the sole person on whom his properties will devolve.

Agreements in Restraint of Trade

Posting a Regular mail sent to a Client in respect of their query regarding Negative Covenants in Agreements which create Restrain of Trade -

Dear ____,

I've carefully perused the attached Agreements and in my considered opinion I see no cause for worry for you in these Agreement in terms of the applicable law in India or US, even if case of breach of the same. It is more of a Moral issue than the legal one.

I've done some research on the Internet looking for similar stuff in respect of US jurisdiction. I could find the following in respect of US & UK jurisdictions and which will be of some use to you -

US Law - Limitation on working in any capacity for competitor is too broad to be enforceable. Superior Consulting v. Walling, E.D.Mich.1994, 851 F.Supp. 839. Source - http://answers.google.com/answers/threadview/id/575068.html

UK Law - http://www.contractorcalculator.co.uk/contractors_restrictive_covenants_law.aspx

The terms of the Agreement are applicable during its currency and you may go ahead with serving the termination notice on your Consultant, to make things clear for him and yourself. But this may precipitate the action for breach of the terms of the Agreement.

And if it comes to fighting it out in Court, then the negative covenant as enumerated in the Agreements / Contract is too broad to be reasonable and hence invalid from the very beginning and cannot be enforced under the Indian Contract Act or for that matter under the US law on the ground of being unreasonable. But legal fees can be an issue in US. For obtaining a restraining order and taking a civil action far enough to obtain any kind of relief will cost a minimum of $3,000 to $5,000 (Source - http://answers.google.com/answers/threadview/id/575068.html ) for Opposite Party and a similar or more for you, if you have to engage a Lawyer to defend yourself in the Courts in US.

Your defence in US, if so required, would be based on the fact that the Agreements / Contract specifies that the law of India would govern the terms and conditions of your contract and that in the event of any dispute it shall be referred to Arbitration under the provisions of the Arbitration and Conciliation Act (of India). Section 8 of the Arbitration and Conciliation Act, 1996 is very clear in this respect and is reproduced hereunder for your ready reference -

8.Power to refer parties to arbitration where there is an arbitration agreement.-

(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.

If you so desire, I can do the threadbare analysis of the Agreement. But rest assured, the sum and substance of the same is in the above paras. I'm dealing with number of cases on this point and my study on this aspect is complete and therefore I can assert it with authority.

Just for your information, at the time when Jet Airways fired thousands of its staff a few years ago, my interview on the point of negative covenant was aired on an FM Channel and after listening to the same, hordes of lawyers would come up to me to discuss this aspect of law because not many of them are aware of this aspect of law.

I'm always happy to hear from you, so please feel free to contact me in case you have any questions or comments.

Thanks!

Cordially,

Vineet Bhagat

Managing Partner
Advocate-on-Record

Supreme Court of India

vineet@kgbhagat.co.in

+91 98 102 09570

M/s.K.G.BHAGAT & Co.

M/s.K.G.BHAGAT & Co. - Advocates and Legal Consultants

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