India: Law Of Probate Of Wills In India

Article by Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
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And Neelam Dalmia, Advocate
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Probate is the legal process of proving a will in Court and confirming its validity. The purpose of probate is to ensure that the deceased person's assets are distributed according to his wishes, as stated in his Will. Probate laws and requirements may vary from state to state or from country to country.

In India, probate laws are governed by the Indian Succession Act, 1925¹. According to S. 2(f) of the Act, "probate" means the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator;

A probate is mandatory only if the Will or codicil has been made in any of the three Presidency towns i.e., Kolkata, and the municipal limits of metro cities of Chennai and Mumbai, or, if the immovable property is situated therein. Else, probate is optional. However, there is no restriction in law to get probate of a Will, even if it is not mandatory.

A cumulative reading of Sections 57, 213 and 264 of the Indian Succession Act, 1925 would show: (i) that a person claiming to be an executor or legatee under a Will cannot rely upon the Will, in any proceeding before a Court of justice, unless he has obtained probate (if an executor has been appointed) or letters of administration with the Will annexed, if such a Will has been executed by certain classes of persons; and (ii) that the jurisdiction to grant probate or letters of administration 22 vests only in courts located within the towns of Calcutta, Madras or Bombay and the Courts in any local area notified by the State Government in the Official Gazette. 36. Therefore, what follows is that: (i) unless the testator belongs to any of the classes of persons specified in the Act; and (ii) unless the Will is made or some of the properties covered by the Will are located, within the local limits of a notified area, there is no necessity for an executor or a legatee under a Will to seek probate or letters of administration.

It was stated by the Apex Court in the judgement of 'Kanta Yadav vs Om prakash Yadav² (2017)' [judgement annexed] that

"6... It is undisputed that the present National Capital Region Delhi was part of erstwhile State of Punjab prior to November 1, 1966. The argument raised by the respondents is that Section 57³ of the Act is applicable where the properties and parties are situated in the territories of Bengal, Madras or Bombay, therefore, it is not necessary to seek probate or letter of administration in respect of properties or the persons when they are not located in the States of Bengal, Madras or Bombay." (Para 6)

In Ram Chand v. Sardara Singh & Ors.⁴, the Punjab High Court held as under:-

"4. ...The clear effect of these provisions appears to be that the provisions of section 213(1) requiring probate do not apply to wills made outside Bengal and the local original jurisdictional limits of the High Courts at Madras and Bombay except where such wills relate to immovable property situated within those territories.

5.There remains to be considered the decision of Shamsher Bahadur, J., in the case mentioned above, which is apparently based on the decision of a Full Bench in Ganshamdoss Narayandoss v. Gulab Bi Bai⁵, [ I.L.R. 50 Mad. 927.]. I find, however, on perusing this judgment that what has been held is that a defendant resisting a claim made by the plaintiff as heir-at-law cannot rely in defense on a will executed in his favor at Madras in respect of property situate in Madras, when the Will is not probated and no letters of administration with the Will annexed have been granted. This is clearly in accordance with the provisions of sections 213 and 57(a) of the Act, and the only point on which the matter was referred to the Full Bench was whether a will could be set up in defense in a suit without probate."

Shri Rajan Suri & Anr. v. The State & Anr.⁶ Referred to the Division Bench judgment in Behari Lal's⁷ case and certain other Single Bench judgments of Delhi High Court to conclude as under:

"33. The result of the aforesaid is that complete line of judgment referred by the learned counsel for the petitioner in support of the submission that probate is mandatory would have no application to the facts of the present case and thus findings arrived at in the collateral proceedings in the suit to which the petitioners were parties would bind the petitioners."

Clarence Pais & Ors. v. Union of India⁸ wherein, validity of Section 213 of the Act was challenged as unconstitutional and discriminatory against the Christians. This Court held as under:

"6....A combined reading of Sections 213 and 57 of the Act would show that where the parties to the Will are Hindus or the properties in dispute are not in territories falling under Sections 57(a) and (b), sub-section (2) of Section 213 of the Act applies and sub-section (1) has no application. As a consequence, a probate will not be required to be obtained by a Hindu in respect of a will made outside those territories or regarding the immovable properties situate outside those territories. The result is that the contention put forth on behalf of the petitioners that Section 213(1) of the Act is applicable only to Christians and not to any other religion is not correct."

Mrs. Winifred Nora Theophilus v. Mr. Lila Deane & Ors.⁹, a Single Bench of Delhi High Court held as under:-

"11. On interpretation of Section 213 read with Section 57 (a) and (b), the Courts have opined that where the Will is made by Hindu, Buddhist, Sikh and Jain and were subject to the Lt. Governor of Bengal or within the local limits of ordinary, original civil jurisdiction of High Courts of Judicature at Madras and Bombay or even made outside but relating to immovable property within the aforesaid territories that embargo contained in Section 213 shall apply. From this it stands concluded that if will is made by Hindu, Buddhist, Sikh or Jain outside Bengal, Madras or Bombay then embargo contained in Section 213 shall not apply. This is what the various judgments cited by the learned counsel for the defendants decide. Therefore, there is no problem in arriving at the conclusion that if the Will is made in Delhi relating to immovable property in Delhi by Hindu, Buddhist, Sikh or Jain, no probate is required."

In the case of 'Naram Bhoomi Reddy v. Naram Venkat Reddy¹⁰, MANU/AP/0926/2014' the Andhra High court held that:-

"It is not necessary for the executor or legatee of a Will to obtain Probates of the Wills in the State of Andhra Pradesh (Also in the Telangana State after its formation). (2) For considering an application to come on record as the legal representative of a deceased party, the Court need not undertake a roving enquiry on the validity of the Will(s). A summary enquiry into the claim of execution of the Wills is enough for the Courts to permit a person who claims to be the legal representative of the deceased party to come on record for the limited purpose of continuing the proceedings." [judgement annexed]

Footnotes

1. THE INDIAN SUCCESSION ACT, 1925. https://www.indiacode.nic.in/bitstream/123456789/2385/1/a1925-39.pdf

2. Kanta Yadav vs. Om Prakash Yadav and Ors. (24.07.2019 - SC) : MANU/SC/0971/2019

3. Ibid

4. Ram Chand v. Sardara Singh & Ors. AIR 1962 P&H 382

5. Ganshamdoss Narayandoss v. Gulab Bi Bai. I.L.R. 50 Mad. 927

6. Shri Rajan Suri & Anr. v. The State & Anr. AIR 2006 Delhi 148

7. M/s. Behari Lal Ram Charan v. Karam Chand Sahni and Ors. AIR 1968 P H 108

8. Clarence Pais & Ors. v. Union of India. (2001) 4 SCC 325

9. Mrs. Winifred Nora Theophilus v. Mr. Lila Deane & Ors. AIR 2002 Delhi 6

10. 'Naram Bhoomi Reddy v. Naram Venkat Reddy. MANU/AP/0926/2014'

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