Will – Probate and Letters of Administration

Abstract

• Probate is:
  • mandatory, for establishing right in a court, as to properties in wills
    • pertaining to property of Hindu, Buddhist, Sikh or Jaina within Bengal, Bombay and Madras – as stated in Sec. 213 read with Sec. 57 of the Indian Succession Act, 1925.
  • not required to establish right in a court as to wills made by
    • Muhammadans, Parsi, Christians in Kerala and also pertaining to Property of Hindu, Buddhist, Sikh or Jaina beyond the provinces of Bengal, Bombay and Madras – as stated in Sec. 213 read with Sec. 57.
• Letters of administration is
  • mandatory to establish right in a court pertaining to property of an intestate person (Note: contradistict to – Letters of administration ‘with the will annexed’): as stated in Sec. 212 –
  • It is required for persons other than Hindu, Muhammadan, Buddhist, Sikh, Jaina, Indian Christian or Parsi (Eg. Anglo-Indians, rationalists or non-religious persons).
• Letters of administration ‘with the will annexed‘ is
  • mandatory to establish right in a court: as stated in Sec. 213
  • (pertaining to wills as to property of Hindu, Buddhist, Sikh or Jaina within the provinces of Bengal, Bombay and Madras) read with Sec. 234 (where no executor or executor refuses etc).
• In short, Probate or Letters of Administration is :
  1. Needed pertaining to wills as to property of Hindu, Buddhist, Sikh or Jaina within the provinces of Bengal, Bombay and Madras.
  2. Not needed pertaining to wills as to property of
     • Muhammadans,
     • Parsi,
     • Christians in Kerala
     • Property of Hindu, Buddhist, Sikh or Jaina beyond the provinces of Bengal, Bombay and Madras
• An executor derives his title from the Will and not from probate.
• An unprobated Will can be admitted in evidence (in court)
  • for purposes other than establishment of right as executor or legatee.
  • in evidence for collateral purposes.
• It is clear from Sec. 273 that probate can be issued as to Movable Property also.
• Succession Certificate –
  • Object is Collection of Particular Debts (Sec. 372);
  • No General Power.

Sec. 2 (f) of the Indian Succession Act, 1925 defines probate as under:

• ” ‘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.”

Letters of Administration – Two Kinds:

1. Referred to in Sec. 212, with respect to ‘Right to intestate’s property’ (no question of Will comes-in).
2. Referred to in Sec. 213, with respect to ‘Letters of Administration with the Will Annexed‘, read with Sec. 234 (Grant of administration where no executor, nor residuary legatee nor representative of such legatee; or executor refuses etc.).

Letters of Administration with the will annexed

Letters of Administration Mandatory to establish ‘right in a court’ as to property of Intestate (other than Hindu, Muhammadan, Buddhist, Sikh, Jaina, Indian Christian or Parsi)

Effect of Letters of Administration

Under Sec. 220 of the Indian Succession Act states that the Letters of administration gives the administrator “all rights belonging to the intestate” to effectively administer as if the administration had been granted at the moment after his death.  It reads:

• “220. Effect of letters of administration. Letters of administration entitle the administrator to all rights belonging to the intestate as effectually as if the administration had been granted at the moment after his death.”
• Note – The clause, “as effectually as if the administration had been granted at the moment after his death” is not stated when the Act deals with ‘Probate’. Because, it is evident that the provisions and directions in the will govern all these matters. It is further clear from the definition of administrator, in Sec. 2(a). It reads:  ” ‘administrator’ means a person appointed by competent authority to administer the estate of a deceased person when there is no executor”.

Sec. 236 lays down that the Letters of administration cannot be granted to:

• a minor
• or is of unsound mind,
• nor to any association of individuals unless it is a company which satisfies the conditions prescribed by rules to be made by notification in the Official Gazette, by the  State Government in this behalf.

In Commissioner v. Mohan Krishan Abrol, (2004)7 SCC 505, the Apex Court observed that a bare reading of Section 211 shows that the property vests in the executors by virtue of the Will and not by virtue of the probate.

Sec. 211 reads as under:

• 211. Character and property of executor or administrator as such. (1) The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such.
•  (2) ….

Sections 57

Sections 57 says as to application of the PART that deals with WILLS.

The Section reads as under:

• 57. Application of certain provisions of Part to a class of wills made by Hindus, etc. The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply
  • (a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and
  • (b) to all such wills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limits; and 
  • (c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b):
• Provided that marriage shall not revoke any such will or codicil.

In Clarence Pais v. Union of India, AIR 2001 SC 115 the Supreme Court held that if a Will is executed by a Hindu in respect of properties situate out side the provinces of Bengal, Bombay and Madras  then probate is not necessary in accordance with Section 57. (Mrs. H. N. Judah v. I. S. Bose, AIR 1962 SC 1471 referred)

As stated above, this section deals with letters of administration with respect to property of a person died intestate

Section 213 reads as under:

• 213. Right as executor or legatee when established.-
• (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.
• (2) This section shall not apply in the case of wills made by Muhammadans, and shall only apply—
  • (i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the classes specified in clauses (a) and (b) of section 57; and
  • (ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962, (16 of 1962.) where such wills are made within the local limits of the ordinary original civil jurisdiction] of the High Courts at Calcutta, Madras and Bombay, and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits.
• [Kerala Amendment – In sub-section (2), after the word ‘Muhammadans’, the words ‘or Indian Christians‘ is inserted, in 1997.]

• Sec. 2 (d) defines Indian Christian as under:
  • ” ‘Indian Christian’ means a native of India who is, or in  good faith claims to be, of unmixed Asiatic descent and  who professes any form of the Christian religion”

Section 213 only says – No Right can be ‘Established in Court‘ with Unprobated Will

The section does not prohibit the use of unprobated Will for purposes other than establishment of right as executor or legatee.

The Supreme Court pointed out in Hem Nolini v. Isolyne Sarojbashini, AIR 1962 SC 1471, that the section does not say that no person can claim as a legatee or as an executor unless he obtains probate or letters of administration. It is held as under:

• “The words of S.213 are not restricted only to those cases where the claim is made by a person directly claiming as a legatee. of the will under which he claims. What it says is that no right as an executor or legatee can be established in any Court of Justice, unless probate or letters of administration have been obtained of the will under which the right is claimed, and therefore it is immaterial who wishes to establish the right as a legatee or an executor. Whosoever wishes to establish that right, whether it be a legatee or an executor himself or somebody else who might find it necessary in order to establish his right to establish the right of some legatee or executor from whom he might have derived title, he cannot do so unless the will under which the right as a legatee or executor is claimed has resulted in the grant of a probate or letters of administration.”

Division Bench of Kerala High Court in Cherichi v. Ittianam, AIR 2001 Ker 184, held as under:

• “The prohibition under Section 213 of the Act is regarding establishing any right under the Will without getting probate or letters of administration and that section cannot be understood as one by which the vesting of right as per the provisions of the Will is postponed until the obtaining of probate or letters of administration. The Will will take effect on the death of the executant of the Will and what Section 213 of the Act says is that the right as executor or legatee can be established in any Court of justice only if probate or letters of administration is obtained. ….. The necessity to obtain probate or letters of administration as provided in Section 213(1) of the Act arises only when right as executor or legatee is sought to be established in a Court and hence that section does not prohibit the use of Will which is unprobated as evidence for purposes other than establishment of right as executor or legatee. So, the requirement of obtaining probate becomes relevant at the time when the establishment or right as executor or legatee on the strength of a Will is sought to be made in a Court of justice…”

In Commissioner v. Mohan Krishan Abrol, (2004)7 SCC 505, it is observed as under:

• “A bare reading of Section 211 shows that the property vests in the executors by virtue of the Will and not by virtue of the probate. Will gives property to the executor; the grant of probate is only a method by which the law provides for establishing the Will. In the case of Kulwanta Bewa v Karam Chand Soni [AIR 1938 Cal  714] it has been held that Section 211 provides that the estate of the deceased vests in the executor; that the vesting is not of the beneficial interest in the property; but only for the purposes of representation. In the case of Meyappa Chetty v. Supramanian Chetty [43 Indian Appeals 113] the Privy Council has held that an executor derives his title from the Will and not from probate. The personal property of the testator (including right of action) vests in the executor(s) on the death of the testator. For purposes of deciding this matter, Section 336 of the Act is also relevant as it provides for assent of the executor to the legacy after the death of the testator. It provides that an executor gets divested of his interest as an executor from the death of the testator when he assents to a specific legacy. Section 213 acts as a bar to the establishment of rights under the Will by an executor or a legatee unless probate or letters of administration have been obtained. This bar comes into play only when a right as an executor or a legatee under Will is sought to be established. However, an unprobated Will can be admitted in evidence for collateral purposes in any other proceedings apart from probate proceedings.”

Can Probate or Letters of Administration be issued to Movable Property

It is clear from Sec. 273 that probate can be issued as to Movable Property also. It reads:

• 273. Conclusiveness of probate or letters of administration. Probate or letters of administration shall have effect over all the property and estate, moveable or immoveable, of the deceased, throughout the State in which the same is or are granted, and shall be conclusive as to the representative title against all debtors of the deceased, and all persons holding property which belongs to him, and shall afford full indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate or letters of administration have been granted.

Read Blog: Law on SUCCESSION CERTIFICATE and LEGAL HEIRSHIP CERTIFICATE

Succession Certificate – Object is Collection of Particular Debts; No General Power

As can be seen from the Sec. 372, the main object of a Succession Certificate is to facilitate collection of particular debt or debts due to the deceased creditor. This section reads as under:

• 372. Application for certificate. (1) Application for such a certificate shall be made to the District Judge by a petition signed and verified by or on behalf of the applicant in the manner prescribed by the Code of Civil Procedure, 1908, (5 of 1908.) for the signing and verification of a plaint by or on behalf of a plaintiff, and setting forth the following particulars, namely:
•  (a) … to  (e) ….
• (f) the debts and securities in respect of which the  certificate is applied for.
•  (2) …. …. …..
• (3) Application for such a certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of portions thereof.

The Supreme Court explained the object in Shri Banarsi Dass v. Mrs. Teeku Dutta, 2005(4) SCC 449, as under:

• “The main object of a Succession Certificate is to facilitate collection of debts on succession and afford protection to parties paying debts to representatives of deceased persons. All that the Succession Certificate purports to do is to facilitate the collection of debts, to regulate the administration of succession and to protect persons who deal with the alleged representatives of the deceased persons.
• Such a certificate does not give any general power of administration on the estate of the deceased. The grant of a certificate does not establish title of the grantee as the heir of the deceased.
• A Succession Certificate is intended as noted above to protect the debtors, which means that where a debtor of a deceased person either voluntarily pays his debt to a person holding a Certificate under the Act, or is compelled by the decree of a Court to pay it to the person, he is lawfully discharged.
• The grant of a certificate does not establish a title of the grantee as the heir of the deceased, but only furnishes him with authority to collect his debts and allows the debtors to make payments to him without incurring any risk. In order to succeed in the succession application the applicant has to adduce cogent and credible evidence in support of the application. The respondents, if they so chooses, can also adduce evidence to oppose grant of succession certificate.”

Probate Operates as a Judgment in Rem

The grant of a Probate by Court of competent jurisdiction is in the nature of a judgment in rem and conclusive and binds not only the parties but also the entire world. The principle is laid down by the Supreme Court in the following cases:

• Lynette Fernandes v. Gertie Mathias, (2018) 1 SCC 271,
• Virendra Kumar Jain v. Asha Goel, 2019-4 All.WC 4033,
• Ishwardeo Narain Singh v. Smt. Kanta Devi, 1954 AIR SC 280,
• Chiranjilal Shrilal Goenka v. Jasjit Singh, (1993) 2 SCC 507.

Probate Court is not competent to determine the question of title

The Supreme Court consistently held (Ishwardeo Narain Singh v. Smt Kamta Devi, AIR 1954 SC 280, Chiranjilal Shrilal Goenka , v. Jasjit  Singh, (1993) 2 SCC 507, and  Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon 2008 (1) CTC 80) that the probate Court is not competent to determine the question of title to the suit properties. (See: P.  Dhanakoti v. Devikarani, 2011 4 CTC 593; 2011 3 LW 633)

Also Read Blog: Executors of Will – Duties & their Removal

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Book No. 1.   Handbook of a Civil Lawyer

Civil Procedure Code

• Civil Rights and Jurisdiction of Civil Courts
• Res Judicata and Constructive Res Judicata
• Order II, Rule 2 CPC – Not to Vex Defendants Twice
• Law on Summons to Defendants and Witnesses
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Sec. 91 CPC and Suits Against Wrongful Acts
• Remedies Under Sec. 92 CPC
• Mandatory Injunction – Law and Principles
• Interrogatories: When Court Allows, When Rejects?
• Decree in OI R8 CPC-Suit & Eo-Nomine Parties
• Pecuniary & Subject-Matter Jurisdiction of Civil Courts

Power of attorney

• No Adjudication If Power of Attorney is Sufficiently Stamped
• Notary Attested Power-of-Attorney Sufficient for Registration
• Permission when a Power of Attorney Holder Files Suit

Land Laws

• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• Land Acquired Cannot be Returned – Even if it is Not Used for the Purpose Acquired
• ‘Mutation’ by Revenue Authorities will not Confer ‘Title’
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Relevant provisions of Kerala Land Reforms Act in a Nutshell
• Government is the OWNER of (Leasehold) Plantation Lands in Kerala.

Evidence Act – General

• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Rules on Burden of proof and Adverse Inference
• Best Evidence Rule in Indian Law
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Significance of Scientific Evidence in Judicial Process
• Polygraphy, Narco Analysis and Brain Mapping Tests
• Sec. 65B
  • Sections 65A & 65B, Evidence Act and Arjun Panditrao: in Nutshell
  • Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
  • Sec. 65B Evidence Act Simplified
  • ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B
  • Sec. 65B,  Evidence Act: Certificate for Computer Output
  • Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• Law on Documents
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  • Marking Documents Without Objection – Do Contents Stand Proved?
  • Proof of Documents & Objections To Admissibility – How & When?
  • Notary-Attested Documents: Presumption, Rebuttable
  • Presumptions on Registered Documents & Collateral Purpose
  • Notice to Produce Documents in Civil Cases
  • Production of Documents: Order 11, Rule 14 & Rule 12
  • Modes of Proof – Admission, Expert Evidence, Presumption etc.
  • Proof and Truth of Documents
  • Unstamped & Unregistered Documents and Collateral Purpose
  • Marking Documents Without Objection – Do Contents Proved
  • Production, Admissibility & Proof Of Documents
  • Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
  • Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
  • Relevancy, Admissibility and Proof of Documents
  • No Adjudication Needed If Power of Attorney is Sufficiently Stamped
  • Can an Unregistered Sale Agreement be Used for Specific Performance

Contract Act

• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• Can an Unregistered Sale Agreement be Used for Specific Performance

Easement

• What is Easement?
• Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• What is “period ending within two years next before the institution of the suit”?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity
• Can an Easement-Way be Altered by the Owner of the Land?
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition

Stamp Act

• Adjudication as to Proper Stamp under Stamp Act
• Unstamped & Unregistered Documents and Collateral Purpose

Book No. 2: A Handbook on Constitutional Issues

• Judicial & Legislative Activism in India: Principles and Instances
• Can Legislature Overpower Court Decisions by an Enactment?
• Separation of Powers: Who Wins the Race – Legislature or Judiciary?
• Kesavananda Bharati Case: Never Ending Controversy
• Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
• Article 370: Is There Little Chance for Supreme Court Interference
• Maratha Backward Community Reservation: SC Fixed Limit at 50%.
• Polygraphy, Narco Analysis and Brain Mapping Tests
• CAA Challenge: Divergent Views
• Religious issues
  • Secularism and Art. 25 & 26 of the Indian Constitution
  • Secularism & Freedom of Religion in Indian Panorama
  • ‘Ban on Muslim Women to Enter Mosques, Unconstitutional’
  • No Reservation to Muslim and Christian SCs/STs (Dalits) Why?
  • Parsi Women – Excommunication for Marrying Outside
  • Sabarimala Review Petitions & Reference to 9-Judge Bench
  • Ayodhya Disputes: M. Siddiq case –Pragmatic Verdict

Book No. 3: Common Law of CLUBS and SOCIETIES in India

• General
  • General Features
  • Bye Laws Fundamental
  • Effect of Registration of Societies and Incorporation of Clubs
  • Societies and Branches
• Property & Trust
  • Vesting of Property in Societies and Clubs
  • Juristic Personality of Societies and Clubs
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• Suits
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• Amendment and Dissolution
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• Rights and Management
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  • Management – Powers of General Body and Governing Body
  • Expulsion of Members & Removal of Office-Bearers
  • Law on Meetings: An Overview
• Election
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  • Court Interference in Election Process
• State Actions
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Book No. 4: Common Law of TRUSTS in India

• General Principles
  • What is Trust in Indian Law?
  • Classification of Trusts
  • Public & Private Trusts in India.
  • Trust is ‘An Obligation’; Not a Legal Entity
  • Indian Law Does Not Accept Salmond, as to Dual Ownership
• Dedication and Vesting
  • Dedication of Property in Public Trusts
  • Vesting of Property in Trusts
  • Incidents of Trust in Clubs and Societies
• Trustees and Management
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  • Alienation of Public Trust Property
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• Breach of Trust
  • Breach of Trust and Removal of Trustees
• Suits by or against Trusts
  • Suits By or Against Trusts and Trustees
  • Remedies Under Sec. 92 CPC
• Law on Hindu Religious Endowments
  • Philosophy of Idol Worship
  • Is an Idol a Perpetual Minor?
  • Hindu Temples & Law of Trusts
  • Public & Private Trusts
  • Law of Mutts and Other Hindu Endowments
  • Shebaits & Mahants and Law of Trustees
• Temples, Gurudwaras, Churches and Mosques – General
  • Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Constitutional Principles
  • Secularism and Art. 25 & 26 of the Indian Constitution
  • Secularism & Freedom of Religion in Indian Panorama
  • ‘Muslim Women: Ban to Enter Mosques, Is it Unconstitutional
  • Parsi Women Excommunication, Unconstitutional.
  • State & Court – Protectors of All Charities
• Ayodhya and Sabarimala Disputes
  • Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
  • Sabarimala Review Petitions & Reference to 9-Judge Bench
• General
  • Public Trusts and (State) Endowments/Trusts Acts
  • Public Trusts and Indian Trusts Act – An Overview
  • Business by Charitable Trusts & Institutions