Ganjam Bar Association, Berhampur

23/08/2024

. "Let's unite for Berhampur's pride! Requesting Honourable Minister Commerce and Transport Steel & Mines Government of Odisha & MLA of Gopalpur to take immediate steps to bring OJTS back home. "

30/04/2024

Types of Will in India:

Understanding the Indian Succession Act

As an Indian, it is essential to understand the legal implications of creating a will. A will is a legal document that outlines how your assets will be distributed after your death. It is a crucial tool for estate planning and ensuring that your loved ones are taken care of. However, many people are not aware of the different types of will in India and the legalities surrounding them. In this article, we will discuss the types of will in India in India and the Indian Succession Act.

Importance of creating a will in family law
Creating a will is one of the most critical steps in estate planning. It is a legal document that ensures that your assets are distributed according to your wishes. A will helps to avoid confusion and disputes among family members and beneficiaries. In case of no will, your assets will be distributed according to the Indian Succession Act, which may not align with your wishes. Hence, creating a will is essential to ensure that your loved ones are taken care of after your death.

What are the various kinds of will under Indian Succession Act?

Create a privileged will with no witnesses or registration required
In India, there are primarily three types of will in India: privileged, unprivileged, and conditional wills. Let us discuss each of them in detail.
Read: A Detailed Guide on Stamp Duty and Property Registration Charges in Haryana

Privileged Wills
A privileged will is a will that is created by a soldier or an airman who is on active duty or engaged in a war-like situation. It can also be created by a mariner at sea. A privileged will can be created by any person who meets these criteria, irrespective of their age or mental condition.

Advantages of a privileged will include that it can be created even without the signature of two witnesses. Also, a privileged will does not require registration or stamp duty.

Unprivileged Wills
An unprivileged will is a will that is not created under the conditions of a privileged will. It is created by a person who is not engaged in active duty or a war-like situation. An unprivileged will can be created by any person who is of sound mind and has attained the age of majority (18 years).

Limitations of an unprivileged will include that it requires the signature of two witnesses. Also, an unprivileged will needs to be registered or stamped to be valid.

Conditional Wills
A conditional will is a will that is created under specific conditions. For example, a testator may create a will that will come into effect only if they die before a particular date or only if a particular person survives them. A conditional will can be created by any person who is of sound mind and has attained the age of majority.

Advantages of a conditional will include that it can be used to provide for future events or circumstances. However, creating a conditional will requires careful consideration of the conditions and their feasibility.

Validity of wills under Indian Law
To ensure that a will is valid, it must meet certain legal requirements. These requirements include that the testator must be of sound mind, the will must be in writing, and it must be signed by the testator and two witnesses. The Indian Succession Act provides the legal framework for the creation and ex*****on of wills in India.

Differences between privileged and unprivileged wills

The Indian Succession Act, 1925, recognizes two types of will in India, privileged and unprivileged. A privileged will is a will made by a soldier or an airman, whether in actual service or not, or by a mariner at sea. A privileged will can be made even by a person who is not of sound mind, provided it is made during a time of war or in anticipation of an immediate danger of death. On the other hand, an unprivileged will is a will that is not a privileged will.
Read: Stamp Duty in Kerala: A Step-by-Step Guide on Your Property Purchase

The main difference between privileged and unprivileged will, is that a privileged will can be made by a person who is not of sound mind and without complying with the formalities required for an unprivileged will. However, an unprivileged will must be executed by a person who is of sound mind and capable of making a will, and it must be executed in accordance with the formalities laid down in the Indian Succession Act.

Advantages and disadvantages of each type of will:
One of the advantages of a privileged will is that it can be made by a person who is not of sound mind. This means that soldiers, airmen, and mariners who are in danger or in a war zone can make a will without having to comply with the formalities required for an unprivileged will. However, the disadvantage of a privileged will is that it can only be made by a person in a specific set of circumstances.

On the other hand, the advantage of an unprivileged will is that it can be made by any person who is of sound mind and capable of making a will. This means that any person can make a will without having to fulfil any specific conditions. However, the disadvantage of an unprivileged will is that it must be executed in accordance with the formalities laid down in the Indian Succession Act.

Can a person execute two wills?
Under Indian law of wills in India, a person can execute two wills. However, the second will must be made with the intention of revoking the first will, and it must be executed in accordance with the formalities laid down in the Indian Succession Act. If both wills are valid, the last will revokes the earlier one.

One of the advantages of executing two wills is that a person can make different provisions for different properties or for different beneficiaries. For example, a person may make one will for movable property and another will for immovable property. However, the disadvantage of executing two wills is that it can create confusion and disputes among the beneficiaries.

Why women need to have their own Succession Plan

Women in India face gender bias, lack of awareness, and family pressure when inheriting property
The Indian Succession Act 1925 has laid down the laws regarding inheritance and succession in India. However, when it comes to succession planning, women are often overlooked. In India, women are often treated unfairly when it comes to inheritance and succession. Therefore, it is essential for women to have their own succession plan in place to ensure that their assets are distributed as per their wishes after their demise.

Challenges faced by women in inheriting property
In India, women have to face several challenges when it comes to inheriting property. The challenges faced by women in inheriting property are as follows:

Gender Bias: Women face gender bias when it comes to inheriting property. Even today, women are considered as secondary heirs, and their share of the property is often less than that of men.
Lack of Awareness: Many women are not aware of their rights when it comes to inheriting property. They are often not informed about the laws regarding inheritance and succession.
Family Pressure: Women are often pressurized by their families to give up their share of the property in favour of male heirs.
Importance of having a succession plan for women
Having a succession plan is crucial for women to ensure that their assets are distributed as per their wishes after their demise. The importance of having a succession plan for women is as follows:

Control over Assets: A succession plan gives women control over their assets and ensures that their assets are distributed as per their wishes.
Avoids Family Disputes: A succession plan helps to avoid family disputes and ensures that the distribution of assets is done in a fair and equitable manner.
Protects Children’s Interests: A succession plan ensures that the interests of children are protected, and they receive their share of the assets.
Provides Financial Security: A succession plan provides financial security to the family and ensures that they are taken care of even after the demise of the woman.

Details of the Indian Succession Act 1925

The Act provides for testamentary, intestate, and revocation of wills, as well as appointing an executor and obtaining probate
The Indian Succession Act 1925 lays down the laws regarding inheritance and succession in India. It is a comprehensive law that covers various aspects of succession, including the creation of wills, the distribution of property, and the appointment of executors.

The key provisions of the Indian Succession Act 1925 are as follows:

Testamentary Succession: The Act provides for testamentary succession, which means that a person can create a will and distribute his/her property as per his/her wishes.
Intestate Succession: If a person dies without leaving a will, the Act provides for intestate succession, which means that the property will be distributed among the legal heirs as per the rules laid down in the Act.
Executor: The Act allows a person to appoint an executor who will be responsible for executing the will and distributing the assets.
Probate: The Act provides for probate, which is a legal process that confirms the validity of the will.
Revocation of Will: The Act provides for the revocation of a will, which means that a person can cancel or revoke his/her will at any time.
Common errors that can invalidate a Will
Types of Will in India
Ensure your will is error-free, attested properly, dated, clear, and includes all assets to avoid disputes and make it valid in court
Creating a will is a crucial step in ensuring that your assets are distributed as per your wishes after your demise. However, it is important to ensure that the will is free from any errors, or it might be deemed invalid in court. To help you avoid common errors that can make your will invalid, we have compiled a list of six mistakes that you must avoid.

Not Attested Properly: A will need to be attested by two witnesses who must sign it in the presence of each other and the testator (the person creating the will). If the will is not attested properly, it can be deemed invalid.
Not Dated: A will must have a clear date of creation. If the will is not dated or has an ambiguous date, it can lead to disputes and make the will invalid.
Not Clear and Specific: A will must be clear and specific in terms of the distribution of assets. If the will is unclear or ambiguous, it can lead to disputes and litigation.
Not Including All Assets: A will must include all assets of the testator, including both movable and immovable assets. If any asset is left out, it can lead to disputes and make the will invalid.
Not Updating the Will: A will must be updated regularly to reflect any changes in the testator’s assets or wishes. If the will is not updated, it can become outdated and make the will invalid.
Testator Not in Sound Mind: A will is only valid if the testator is of sound mind and capable of making rational decisions. If the testator is not in a sound state of mind, the will can be challenged and deemed invalid.
By avoiding these common errors, you can ensure that your will is valid, and your assets are distributed as per your wishes.

The challenging process of establishing the validity of a will Indian law court

Understand the legal process to prove a will in court and ensure its validity, even when there are suspicious circumstances
When a will is contested in court, it can be a long and arduous process. The Supreme Court has laid down guidelines to prove a will in court, especially when there are suspicious circumstances surrounding the will. These guidelines can help you understand the legal process better and ensure that your will is upheld in court.

Burden of Proof: The burden of proving the will lies with the person who asserts its validity. They must prove that the testator was of sound mind while making the will and that it was made without any coercion or undue influence.

Suspicious Circumstances: If there are any suspicious circumstances surrounding the creation of the will, such as the testator’s mental capacity, influence by others, or irregularities in the ex*****on of the will, the court will scrutinize it closely.

Evidence: To prove a will, the evidence must be clear, consistent, and cogent. The evidence must also support the authenticity of the will and the testator’s intention to create it.

Expert Opinion: In cases where the testator’s mental capacity is in question, expert opinion from a medical practitioner may be required to prove their soundness of mind.

Probate: Probate is a legal process to establish the validity of a will. It involves submitting the will to the court, which then verifies its authenticity and approves its ex*****on.
Appeals: If a will is contested and a decision is made, either party may appeal the decision. The appeals process can be time-consuming and expensive.
By understanding these guidelines, you can ensure that your will is created in a manner that is free from any suspicious circumstances and that it is executed as per your wishes.

Types of Will in India

Create a will in India to ensure your assets are distributed as per your wishes
The Indian Succession Act lays down the laws and regulations surrounding wills in India. Creating a will is crucial for every individual to ensure that their assets are distributed as per their wishes after their demise. There are various types of will in India in India that one can choose from, depending on their specific needs and requirements.

Creating a valid will can be a complex process that requires careful consideration and expert guidance. NoBroker, the leading online real estate platform in India, offers comprehensive will-making services to help you create a valid will easily and efficiently. NoBroker’s team of legal experts can guide you through every step of the will-making process, from drafting to registration, and ensure that your will complies with all the legal requirements. With NoBroker, you can also access a range of other property-related services, such as property listing, buying/selling, and legal assistance.

17/04/2024

A study of the provisions of "Gift" under the Transfer of Property Act, 1882

Introduction:

In India, Transfer of Property Act 1882 deals with the legal aspects related to property transactions and transfers. The Act is an important piece of legislation in India which provides a very structured mechanism for the smooth transfer of different kinds of property. The first goal of the Transfer of Property Act is to provide for proper and legal ways through which rights in properties are transferred.

A property can be transferred in several ways such as Gift, Sale, and Exchange etc. and is under the act of 1882. Among these, one vital element of property transfers addressed by the Act is “gift.”

Understanding the Basics:

Gift, as defined under Section 122 of the Transfer of Property Act, is the transfer of certain existing immovable or movable property made voluntarily and without consideration, by one person (the donor) to another (the donee), and accepted by or on behalf of the donee.

At its core, a gift under the TPA is the voluntary transfer of existing property (movable or immovable) by one person (the donor) to another (the donee), without any consideration. This means the transfer is free, devoid of any expectation of payment or service in return. When a gift is made, a property already owned by one person is unilaterally transferred to another without payment. Furthermore, the section solely applies to inter vivos gifts, or gifts made between living people, as is clear from the legislation’s phrasing. Mortis causa gifts and inheritance are not covered. Section 122 to Section 129 contained in Chapter VII of Transfer of Property Act, 1882 deals with gifts.

Essential Elements Of Gift:-

1. Parties to the gift - There must be two parties i. e. the donor and the donee. The individual who transfers the interest is referred to as the “Donor,” whilst the person to whom the interest in the property is transferred is referred to as the “Donee. The donor (Transferor) must be a competent person (competency as defined in Indian Contract act 1872). The donee (transferee) need not be competent to contract.

A gift made to a minor or an insane person, or even if it is made to an unborn person is valid and can be accepted by their legal guardian.

2. Transfer of ownership: A gift involves a transfer of ownership, as in this the whole interest of the person in the property is transferred in favour of another person. When a property is transferred through gift, the right created in favor of donee is an absolute right i.e. ownership of property is transferred. It is clearly stated that in case of gifts relating to immovable property, the transfer must take place through a registered instrument which must be signed by the donor and attested by at least two witnesses. But movables may also be transferred through the gift by delivery of possession.

For instance, if one person would like to give a house together with the land of his property as a gift for someone else’s benefit he has to make out a gift deed on behalf of this donee and have it registered notarized end or signed by at least two people in order that transfer is valid. But he can gift any movable property such as a car, scooter or gold to anyone prior to registering the deed of transfer by delivery of possession. It has to be noted that only the property in possession can gifted.

In Sahadev Vs. Shekh Papa (1905)29 Bom. P.119, the Court held that for the gift of immovable property, registration of Gift Document is mandatory and it amounts to notice for a subsequent transfer and not for earlier transactions prior to registration.

In D.N.Davar Vs. Ganga Ram Saran Dhama, AIR 1993 Del P.19, the Court held that in case of a gift of immovable property, if the document is not registered, mere delivery of possession cannot pass a title to the donee.

3. Subject matter: The subject matter of gift can be a movable, moveable or immovable property, but it should be in existence and the donor should have vested right in that property and not contingent. According to Section 124, a gift cannot be made unless the property was actually there in existence when it was given.

4. Without consideration: A gift must be gratuitous i.e. without consideration or other benefit. The ownership of the subject-matter of the gift item must be given away for no money or other benefit or in exchange of any of the things. Even the smallest amount of insignificant property or cash provided by the transferee in exchange for the transfer of a very large asset might qualify as consideration for a sale or an exchange. Therefore the gift has to be out of love and affection. The consideration is of a pecuniary, or monetary, nature. Mutual love and affection are not based on money.

In Padma Chand v. Lakshmi Devi, 2010 (173) DLT 604 (Delhi) the Court held that gift is a voluntary transfer of property without consideration and parting by the owner of the property without any pecuniary benefit.

5. The Gift must be Voluntarily done with Free Consent:

The donor must have given the gift of his or her own free will and consent, and neither the will nor the consent may have been obtained through coercion or undue influence. It must be made with the donor's free will and free consent without any force, coercion, undue influence. If it is not done voluntarily then the gift is void. Voluntarily done also means that the donor had full knowledge of the transaction and its nature.

For example, a gift deed signed by a woman and her son under her husband's threat that he would kill himself if they did not leave their property to his brother was declared invalid.

In the case of Pratima Choudhury v. Kalpana Mukherjee, the Supreme Court established criteria for evaluating the legality of a transaction where the consent of the gift donor may be impacted. The court identified two key queries that must be addressed in such situations.

(A) Is one party in a position to control the other’s will, given the relationships between the parties?

(B) Has the position been utilized to exert excessive influence, i.e., has the position been used to control the will.

6. Acceptance of gift: A gift must be accepted by the donee. Acceptance made can be expressed or implied but it must be accepted before the death of the donee and before the revocation by the donor.

Gift to Several Persons of Whom One does not Accept
· Gifts may be made to two or more persons

· For the validity of the gift, it is necessary that it must be accepted by all the donees.

· Section 125 provides that a gift of a thing to two or more donees, of whom one does not accept it, is void as to the interest which he would have taken had he accepted

GIFT OF IMMOVABLE PROPERTY AND MOVABLE PROPERTY:-

Sec 123 of the Transfer of Property Act deals with the mode of transfer in the case of gifts. It provides separate provisions for the gift of immovable and movable properties. With regard to gifts of immovable property, Sec 123 provides the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Registration is compulsory in case of a gift of immovable property, whatever may be the value of the property. For the registration of the deed, both the parties, i.e. donor and donee must be present.

One of the prerequisites for registration is the transfer must be in writing and cannot be done orally. The registration must be completed in the manner prescribed by the Indian Registration Act, 1908.

A deed of gift once executed and registered cannot be revoked, unless the mandatory requirement of Section 126 of Transfer of Property Act, 1882 is fulfilled.2

In Ram Niwas Awasthy v. Narayan Prasad, 2007 (2) MPLJ 332 (335) (MP), the Court held that the question whether a document is a gift or not depends upon the language used in the document and from the perusal of entire document if it is gift then the provisions of Sections 122 and 123 shall apply.

Gift of Movable Property:

With regard to movable property, the gifts can be affected either by a registered instrument signed as aforesaid (signed by the donor or on his behalf) or by delivery. Even in the case of movable property, registration is made optional when delivery of possession takes place. No delivery of possession is required when it is made through a registered document. Sec 123 provides that delivery may be made in the same manner as goods sold are made i.e., which the parties agree to constitute delivery or putting the goods in possession of the buyer.

Suspension Or Revocation Of Gift.

Section 126 of Transfer of Property Act, 1882 deals with when gifts may be suspended or revoked. The donor, in cases of ingratitude or misconduct by the donee, can exercise the right to revoke the gift.

The general rule is that the donor can't gift anything to anyone by saving the liberty of revoking the gift at his pleasure. A gift that has previously been agreed to by the giver, accepted by the donee, and, if necessary, registered by the registering body, is typically irrevocable.

Section 126 of the transfer of property act is an exception to this general rule. In certain cases, the donor can exercise such power. The power of revocation would be valid if the event on the happening of which the gift can be revoked does not depend upon the will of the donor.

For instance, A gifted 50 acres of land to B with a condition that A shall take back the 50 acres of land if B dies before A and B agreed to it. Here, if B dies before A, A will get his property back as the death of B does not depend upon the will of A. But instead, if A gifted 1 lakh rupees to B and put a condition that he shall take back ten thousand rupees from it anytime he wants, is void and A shall get ninety thousand rupees only.

The gift of said ten thousand is void and that continue to belong to A as if it has not been gifted to B. Section 126 can't be read in isolation as it is controlled by section 10 of the transfer of property act which says that any stipulation completely restraining the done from transferring the gifted property is void.

According to Balai Chandra Parui v. Durga Bala Dasi, [AIR 2004 Cal 276], revocation is also feasible when the gift deed is completed without the donor’s free permission as a result of fraud or undue influence.

Section 126 lays down two modes of revocation of gift:

(i) Revocation by mutual agreement of donor and donee.:-

When both the parties i.e. donor and donee agree that the gift will be suspended or revoked on the happening of some event, provided that that particular event is not dependent upon the will of the donor. The condition for revocation is condition subsequent and it must be valid and enforceable. Any such condition which is not valid, the gift cannot be revoked.

(ii) Revocation by rescission as in the case of contracts:- Gift deed is always preceded by an express or implied contract. As per the Indian contract act, all the essentials of a valid contract should be fulfilled. If any essential is not fulfilled, it can be revoked.

For example, if a gift is made out of coercion, which means the donor’s consent was not there and therefore it can be revoked.

Conclusion:-

The Transfer of Property Act, 1882 defines the provisions of gift. So, the essence of a gift is in its voluntariness and it has to follow legal formalities if at all such transfer be valid and enforceable.

It is important for people in property deals where gifts are involved to know these rules. There are various types of willing transfer; no matter what the nature is, there must be clarity and whether it’s from a business or personal donation to charity, receiving something as an inheritance from family members – making things clear always helps in ensuring that your gift transaction remains honest and secure for all parties involved.

25/06/2023

25/06/2023

Ownership - Proof - Merely because defendant paid electricity bills and water charges while staying in a portion of house in question would not make him an owner of suit property. (2023(2) Civil Court Cases 392 (P&H)

Power of Attorney - General power of attorney holder cannot delegate his powers to another person but it can be delegated when there is specific clause permitting sub-delegation. (2023(2) Civil Court Cases 487 (S.C.)

Will - Attestation - To be an attesting witness, it is essential that witness should have put his signature for the purpose of attesting that he has seen the executant sign or has received from a personal knowledge of his signature - If a person put his signature on the document for some other purpose, he is not an attesting witness. (2023(2) Civil Court Cases 510 (Calcutta)

14/10/2021

Difference Between Judge And Magistrate
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Judge: Judge is a Judicial officer appointed to hear and decide matters relating to law.

The word ‘Judge’ has been derived from the Anglo French word ‘JUGER’ which means ‘TO FORM AN OPINION ABOUT.”
From Old.French, the word ‘JUGIER’ means ‘TO JUDGE.’
From Latin ‘JUDICARE’ which also means “to judge, to examine officially; form an opinion upon; pronounce judgment.”

Magistrate: Magistrate is a civil officer that has power to administer and enforce the law. He has limited judicial authority.
The word ‘magistrate’ has been derived from the Old.French word ‘MAGISTRAT,’ which means “CIVIL OFFICER IN CHARGE OF ADMINISTRATING LAWS.” From Latin ‘MAGISTRATES’ which also means "A MAGISTRATE, PUBLIC FUNCTIONARY.”

Judge and Magistrate are two terms that are often confused us to mean, It is generally believed that both the terms Judge and Magistrate refer to one and the same person. Actually, both of them differ in more than one aspect. A Judge is bestowed with more powers than a Magistrate. A magistrate has only administrative and limited law enforcement powers. The powers exercised by a magistrate are more than an Administrative Official. Magistrates may preside over lower level criminal cases and some civil matters. They may handle cases, such as, petty theft and small crimes etc. On the other hand, judges handle large cases.

Eg. District Collector / District Magistrate is the administrative head of the district who is a member of the Indian Administrative Service, and is appointed by the Government. He performs the statutory functions as required under various Legislations relating to the Revenue Administration such as revenue collection, taxation and the handling of natural and man-made emergencies etc. As District Magistrate he is responsible for maintenance of law and order, hearing cases under the preventive section of the Criminal Procedure Code, supervision of the police and jails etc. He is also responsible to maintain peace and justice in the district.
The District Judge is head of the entire Judgeship and all other Judicial Offices in that district are under his Subordination. The Court of District Judge is also appellate Court, which exercises jurisdiction both on original side and appellate side in civil and criminal matters arising in the District.

In Surendra Kumar Bhatia Vs. Kanhaiya Lal & Ors. [2009 INSC 194 (30 January 2009)], The Supreme Court has held that a district collector is not a judge and as such cannot seek immunity from prosecution in criminal cases. The court ruled that the immunity granted to judges under Section 77 IPC would not be available to district collectors or the land acquisition officers who acquire private lands and award compensation.
“The Collector is neither a Judge as defined under Section 19 nor does he act judicially, when discharging any of the functions under the (Land Acquisition) Act. Therefore he is not entitled to protection under Section 77 IPC.”
"In making an award or making a reference or serving a notice, the Collector neither acts in judicial nor quasi judicial capacity but purely in an administrative capacity, exercising statutory powers as an agent and representative of the Government/Acquiring Authority," the court observed.

Magistrates are classified into four categories according to the provisions of the Criminal Procedure Code, 1973

* A Chief Judicial Magistrate

* Judicial Magistrates First Class;

* Judicial Magistrates Second Class; and

* Executive Magistrates

Chief Judicial Magistrate: Section 12 of The Code Of Criminal Procedure, 1973 Explains about the following terms, it runs as follows
Chief Judicial Magistrate and Additional Chief Judicial Magistrate, etc.
(1) In every district (not being a metropolitan area), the High Court shall appoint a Judicial Magistrate of the first class to be the Chief Judicial Magistrate.
(2) The High Court may appoint any Judicial Magistrate of the first class to be an Additional Chief Judicial Magistrate, and such Magistrate shall have all or any of the powers of a Chief Judicial Magistrate under this Code or under any other law for the time being in force as the High Court may direct.
(3) (a) The High Court may designate any Judicial Magistrate of the first class in any sub- division as the Sub- divisional Judicial Magistrate and relieve him of the responsibilities specified in this section as occasion requires.
(b) Subject to the general control of the Chief Judicial Magistrate, every Sub- divisional Judicial Magistrate shall also have and exercise such powers of supervision and control over the work of the Judicial Magistrates (other than Additional Chief Judicial Magistrates) in the sub- division as the High Court may, by general or special order, specify in this behalf.

According to Section 29 (1) of the Code Of Criminal Procedure, 1973 The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years.

Section 11 in The Code Of Criminal Procedure, 1973 explains about the following terms, it runs as follows
11. Courts of Judicial Magistrates.
(1) In every district (not being a metropolitan area), there shall be established as many Courts of Judicial Magistrates of the first class and of the second class, and at such places, as the State Government may, after consultation with the High Court, by notification, specify: 1[ Provided that the State Government may, after consultation with the High Court, establish, for any local area, one or more Special Courts of Judicial Magistrates of the first class or of the second class to try any particular case or particular class of cases, and where any such Special Court is established, no other Court of Magistrate in the local area shall have jurisdiction to try any case or class of cases for the trial of which such Special Court of Judicial Magistrate has been established.]
(2) The presiding officers of such Courts shall be appointed by the High Court.
(3) The High Court may, whenever it appears to it to be expedient or necessary, confer the powers of a Judicial Magistrate of the first class or of the second class on any member of the Judicial Service of the State, functioning as a Judge in a Civil Court.

According to Section 29 (2) of the Code Of Criminal Procedure, 1973 The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or of both.

Sec 29 (3) The Court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding one thousand rupees, or of both.

Executive Magistrates: Section 20 in The Code Of Criminal Procedure, 1973 explains about Executive Magistrate, it runs as follows
20. Executive Magistrates.
(1) In every district and in every metropolitan area, the State Government may appoint as many persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be the District Magistrate.
(2) The State Government may appoint any Executive Magistrate to be an Additional District Magistrate, and such Magistrate shall have 1[ such] of the powers of a District Magistrate under this Code or under any other law for the time being in force 2[ as may be directed by the State Government].
(3) Whenever, in consequence of the office of a District Magistrate becoming vacant, any officer succeeds temporarily to the executive administration of the district, such officer shall, pending the orders of he State Government, exercise all the powers and perform all the duties respectively conferred and imposed by this Code on the District Magistrate.
(4) The State Government may place an Executive Magistrate in charge of a sub- division and may relieve him of the charge as occasion requires; and the Magistrate so placed in charge of a sub- division shall be called the Sub- divisional Magistrate.
(5) Nothing in this section shall preclude the State Government from conferring, under any law for the time being in force, on a Commissioner of Police, all or any of the powers of an Executive Magistrate in relation to a metropolitan area.

These magistrates are normally conferred on the officers of the Revenue Department, although an officer can be appointed exclusively as an Executive Magistrate. Normally, the Collector of the district is appointed as the District Magistrate. Similarly, the Sub-Collectors are appointed as the Sub Divisional Magistrates. Tahsildars and Deputy/Additional Tahsildars are appointed as Executive Magistrates.

The only difference between the Judicial Magistrate and the Executive Magistrate is that all cases can handle by the Judicial Magistrate whereas certain issues relating to public peace, maintenance of Law and Order etc can be handle by the Executive Magistrate.
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