Preamble

OF THE STATUS OF HEIR

Article 1107 – Petition for definitive guardianship - Whoever proposes to have definitive

guardianship of the assets of the absentee, shall justify the absence and his capacity of heir and shall apply that the possessor of the assets, provisional guardian, administrator or attorney, the Public Ministry and any other known interested parties be summoned and by way of publication the absentee and unknown interested parties. § 1: The absentee shall be summoned by publication of 6 months notices; the proceedings shall in the mean time follow the normal course, but the final judgment shall not be delivered without the time fixed for publication is over.

§ 2: If the presumed heir is the State, the Public Ministry, shall apply for definitive guardianship in its favour, as soon as the necessary requirements to grant it are satisfied. § 3: The petition for definitive guardianship shall be an attachment to the file for provisional guardianship, if the same has been granted. Civil Code article 64. Articles 1107-1118 – Justification of the absence and of the status of heir. oThis is a procedure unknown to our system. Article 1108 – Subsequent pleadings - The parties summoned may, in the written statement, either dispute the absence or apply for the guardianship, by putting the claim either concurrently to the case of the plaintiff or in preference to the plaintiff. In the replication and sur rejoinder the interested parties may put forth their case or contest the case of the competitors or of the adversaries.

Article 1109 – Steps after pleadings - After the pleadings are over, the steps of ordinary

proceedings or summary proceedings shall be followed, depending upon the valuation of the cause. If there is ground for granting guardianship, it shall be granted it to the one who has the better right, but the order shall not be implemented before the lapse of 4 months after the publication of the notice affixed at the door of the house of the local administrative authority of the parish of the last domicile of the absentee and notice published in a newspaper of the taluka in which the said

the seat of the Taluka. Article 1110 – Procedure where there is no contest - After the time fixed for filing of written statement for the parties who are served in person and for uncertain parties has passed, and no opposition is filed, the plaintiff shall produce within 8 days, the list of witnesses and after their examination and collection of any other information found necessary and after the lapse of period referred to in Paragraph 1 of article 1107, the case shall be decided. Article 1111 – Delivery of the assets - In execution of the judgment which has appointed the guardian, the assets shall be delivered to the qualified guardians and to any other interested

parties, after making the listing of the items and furnishing security and partitioning of properties amongst the interested parties as per their rights. If the assets have already been listed or inventoried in other proceedings, the same will be the basis to effect delivery and partition of the properties. § 1: The security shall be calculated keeping in mind the value of the movables which each interested parties received and to the income which is not appropriated. § 2: The State is not to furnish any security. Civil Code article 67. Article 1112 – Justification of absence for other purposes - The procedure for justification of absence, regulated in articles 1107 to 1109, is also applicable: a) When the heirs of the absentee do not apply for definitive guardianship and the legatees or any other parties propose to receive the assets to which they have right and the absentee was enjoying or which accrued to the absentee subsequent to his absence; b) If there is a lapse of 20 years from the absence or the absentee has completed 95 years of age without granting definitive guardianship, and the heirs or other interested parties propose to claim succession or delivery of the properties. § Sole Paragraph: The delivery shall be done in accordance with article 1111; but, in the case of clause (b) without furnishing of security. Civil Code article 67 sole Paragraph and article 72.

Article 1113 – Procedure for opening closed will - As an act preparatory to the definitive

guardianship or the prayer to claim the succession and delivery of the assets, it is permissible to direct the opening of the closed will left by the absentees. The opening shall be asked by the private depositary of the will or by any person who qualified himself as successor and by Public Ministry. The applicant shall justify his locus standi and the existence of the absence, shall produce the will or shall indicate the place where it is found, and shall indicate the persons who are to be summoned and immediately give the name of the witnesses, not exceeding five. Summons shall be issued to the private depositary of the will when he is not the applicant, to the administrator or provisional guardian of the properties and presumed lawful heirs; and by way of publication the absentee and any other uncertain interested parties.

The summoned persons may contest within a period of 10 days and they shall immediately offer the evidence. After the evidence is led the judge shall obtain the information, which is found necessary, and then shall decide the matter. If he grants the prayer, he shall direct that the will shall be opened and registered by the competent public employee. After the will is opened and registered, the will shall be considered as a public. Civil Code article 66.

Article 1114 – End of guardianship if whereabouts are found - As soon as there is reliable

news of the whereabouts of the absentee and where he resides, provisional guardianship will be declared, a provisional guardian shall be appointed who otherwise was definitive or any other fit person shall be chosen when there are more than one and notice will be issued to the absentee that his assets are put under guardianship and they will continue as such until he takes adequate steps. Civil Code article 78, no. 2 and sole Paragraph.

Article 1115 – End of guardianship when absentee returns - If the absentee returns and desires to put an end to the guardianship or ask for return of the assets, he shall apply in the proceedings where delivery is recorded, that the guardians or posessors of the assets be notified to, within 10 days, return the assets or deny his identity. If the identity is not denied the delivery of the assets shall be effected immediately and guardianship, if any, will come to an end. If the identity of the applicant is disputed he shall justify within 20 days by way of pleading which those notified, may contest within 8 days. With the pleadings and contestation, evidence will be tendered. After the evidence is led and procedural steps are taken and information is obtained which is found necessary, decision will be passed. When there is a case foreseen in article 80 of the Civil Code, once the delivery of the assets is directed, in the same file liquidation shall be made in accordance with article 806 and following the liability which is referred to in the same article to the extent of the alienated assets. Civil Code article 78, no. 1.

Article 1116 – End of guardianship in other cases - In the case of clauses 3 and 5 of article 78 of the Civil Code, as soon as the guardianship is declared as ended and the certified copy of the same fact is produced and security furnished is declared extinct or only limited to possessors of the assets who are not definitive guardians. If the cessation of guardianship and extinction of the security or extinction of security only, on the ground of lapse of 20 years of absence, the cessation shall be granted independent of any formality, as soon as from the records it is manifest the grounds is true.

Article 1117 – Procedure to assert the status of heir - If anyone proposes to establish his/her status as heir or representative of a deceased person and if there is no definite party who may claim adversely, he shall seek the declaration and shall pray that notice be given to Public Ministry & by affixation to all uncertain parties and death certificate of the estate leaver shall be annexed to the same. Any person, who claims to have equal or better right than that of the Applicant, may pray to be declared as heir within 20 days subsequent to the notice affixed in the Court. The Applicant and any other person who claims to be heir may contest the adverse pleading within period of 8 days. The interested parties may also file rejoinder to the same within subsequent 8 days. The provision of Article 1109 and 1110 shall be attracted in this case, wherever they are applicable. § Sole Paragraph: If the application is dismissed on account of the evidence, the Applicant may adduce further evidence or make fresh application. Article 1118 – Partition of inheritance amongst a generality of persons - Where the inheritance is to be partitioned amongst certain generality of persons, whoever is entrusted to partition the same shall indicate the persons who according to him are comprised within such generality and shall apply that any uncertain interested parties may be summoned by way of publication, to prove their capacity as heir within 20 days from the period specified in the public notices. The persons indicated by the executor of the will shall be served with the notice and also the executor may contest the claims which have been put forth. Any claimant may contest the claims

of the opponent, and thereafter the steps prescribed in the previous article shall be followed. Civil Code article 1740, sole Paragraph.