Intestate succession of property, in the case of Hindus and Mohammedans, is governed by their respective personal inheritance laws, and in the case of Christians under the Indian Succession Act, 1925. Testamentary succession, on the other hand, is governed by the Indian Succession Act, 1925 and encompasses the laws of succession to those to whom property has been bequeathed by will and to whom the personal laws relating to succession would not normally apply. However, it should be noted that the extent and/or nature of assets which may be bequeathed by will may still be subject to limitations and restrictions imposed under the testator’s personal inheritance laws.
Wills and estates
A Will as defined in Section 2(h) of the Indian Succession Act 1925 is a person’s last wish as to how his property is to be used and transferred after his death.
The term probate as defined in Section 2(h) of the Indian Succession Act 1925, in common parlance, would mean a copy of the will certified by a court of competent jurisdiction as to being (i) authentic and without any disability; and (ii) the last will of the testator. Probate entitles the person who has been appointed executor to execute the will in the manner expressed by the testator in the will.
Evolution and development
The law relating to wills and successions is developed as it has developed historically, its genesis dating back to the Roman Empire. The Romans are credited with developing the concept of “will” which evolved over time.
The Testamentary Succession Act of England is also a modified version of this provision and with their colonization of Indian territories also successfully introduced the laws of testamentary succession in India. Ironically, although introduced by the British, there are major differences between the English law of testamentary succession and the Indian Succession Act 1925. This is also cited separately in the 110th Report of the Law Commission, 1985.
Prior to the Indian Succession Act, 1925, its predecessors, namely the Indian Succession Act 1865 (applicable to all classes domiciled in British India other than Hindus, Muslims and Buddhists), the Hindu Wills Act 1870 and the ‘Probate and Administration Act, 1881 were the laws governing wills and probates until the enactment of the Indian Succession Act 1925, consolidating all the pre-existing legislation into one.
What does it confer?
A probate, when granted, would be an in rem judgment (Chandrabhai K Bhoir and Ors v. Krishna Arjun Bhoir, 2009 (2) SCC 315). Therefore, a judgment in the event of probate would bind the whole world. A will is probated to ensure that the will in question is authentic and the last will of the testator and that the intention in said will is that of the testator with respect to his property and is to be executed in the manner bequeathed under the Will be. This can be understood by the fact that in order to apply for probate a summons under Section 283 of the Indian Succession Act 1925 must be issued inviting all persons who have an interest in the property to see the proceedings before granting probate in favor of the executor/legatee.
A probate is only in the nature of a certificate that the last will of the testator has been proven in court and in no way decides the question of the deceased’s title to the property bequeathed in the will.
Who can grant a probate?
Only a court of original civil jurisdiction can grant probates. Executors and legatees must file the request for probate at the earliest because there is a time limit of 3 (three) years from the date of death of the testator. It is well established that a probate is not a prerequisite to filing a lawsuit relating to the assets of the will and probate can be sued alongside such a lawsuit. However, the final judgment of any court would be subject to probate of the will by a court of competent jurisdiction.
Section 57 r/w Section 213
In India, probates were required to prove the entitlement of the legatee or executor who resided in British India, but not for legatees or executors of Part “B” states and Part “C” states . This position continued even after the coming into force of the Constitution of India.
(Clarence Pais v. Indian Union, 2001 (4) SCC 325)
Under Section 57, all wills (i) made by a Hindu, Buddhist, Sikh or Jain, in the territories which were once presidential cities/presidencies under British India – (i.e. – Bombay, Calcutta and Madras) and (ii) executed outside the territories referred to in point (i) above but relating to real estate located in these territories must be approved. This section specifies the category of wills for which probates are required. This does not mean that wills that do not fall into this category cannot be probated. For such wills, probate is simply optional. There is no prohibition to apply for the granting of a type approval. No probate is required to establish a claim for property, movable or immovable, not relating to property located in the territories referred to in Section 57(a).
For cases not covered by article 57, if a probate is not obtained, the executor or the legatee or any person having an interest in the will will have to prove its authenticity in all cases where the will has been mentioned and this, on a contradictory level, would cement the plaintiff or the defendant on an equal footing and one or the other of the parties who must rely on such a will should first have it homologated by a court competent.
Further, Section 213(1) of the Indian Succession Act 1925 essentially prohibits recognition of the right of an executor or legatee under a will unless such a will is homologated, and moreover, establishes a rule of evidence and is really part of the procedure requirement of the law of the forum. However, Section 213(2) clarifies that the requirement of probate only applies to categories of wills falling within the scope of Section 213(2). However, it is relevant to note that section 213 does not prevent the executor or legatee from having a will probated.
It is clear that only wills falling under article 57 should be compulsorily probated, i.e. the wills of Hindus, Sikhs, Buddhists and Jains in the territories which, at the said date, were subject to the Lieutenant Governor of Bengal or the local limits of the original ordinary civil jurisdiction of the High Courts of Madras and Bombay, i.e. present day Mumbai, Kolkata and Chennai. Probate is not compulsorily required by Indian Christians and Muslims under Section 213(2).
From an analysis of Article 57 read with Article 213, it is clear that while Mohammadans and Indian Christians do not need to have a will compulsorily probated, whereas Hindus, Buddhists, Sikhs, Jains and Parsis are obligated to probate the will if (i) the will was executed by the testator in Chennai, Kolkata and Mumbai; or (ii) the property is located or located within the city limits of Chennai, Kolkata and Mumbai.
Opinion
The Law Commission in its 209th Report, 2008, proposed the omission of the entire Section 213 citing the same as discriminatory. Further, lengthy litigation, court costs for probate, and misdeeds by those with ulterior motives invoking frivolous interests would be unfair and cause pain and delay to legatees who were to benefit from the property bequeathed by the testator. I suspect that would certainly not have been the final intentions of the testator who, having left for the celestial abode, now entrusted the Herculean task to his heirs to probate the will in case they fell under the scope of article 57 of the Indian Succession Act.
Warning – The views expressed here are those of the author alone and do not represent the views of any organization and readers should not act upon this information without seeking professional legal advice.
