Section 213(1) makes it mandatory for every legatee or executer to obtain a Probate of the will or Letter of Administration with the will before they try to execute a will. Otherwise, an executor or legatee cannot establish any right in a court of law pertaining to the concerned will and any estate mentioned therein.
In simple words, an executor or the legatee can only perform their testamentary operation and their respective roles disposition of the deceased estate, when they duly obtain a Probate/Letter of Administration from a court of competent jurisdiction.
Exception to the mandate under section 213(1)
Section 213(2) read with section 57 of the Indian Succession Act, 1925 clearly carves out certain exceptions to the mandate under section 213(1) of the Act. For a better understanding, both sections are extracted below:
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 immovable property situate within those territories or limits, 2[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.
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 3[or Indian Christians], 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 4[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.]
A bare reading of Sections 213(2) and 57 of the Act makes it clear that whatever exception contained in Sub-section (1) of Section 213 has no application in respect of wills made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territoriessubject 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. Also, in respect of those wills that are made outside the territories mentioned above but deals with immovable property situated within such territories.
Some of the cases which dealt with these issues in detail are mentioned below:
- Clarence Pais & Ors vs Union Of India[1] (SUPREME COURT OF INDIA)
- Kanta Yadav VS Om Prakash Yadav and Others [2] (SUPREME COURT OF INDIA)
- Joginder Pal PAL vs Indian Red Cross Society & ORS.[3] (SUPREME COURT OF INDIA)
- Gangavath Lalu vs. Gangavathi Tulsi[4] (High Court of Andhra Pradesh at Hyderabad)
- Bhagwanji Karsanbhai Rathod vs Surajmal Anandraj Mehta[5]( High Court of Bombay)
- Hans Raj and Anr vs Jeet Kaur (Deceased)[6] (High Court Of Delhi)
[1] https://main.sci.gov.in/jonew/judis/17619.pdf(SUPREME COURT OF INDIA)
[2] https://main.sci.gov.in/supremecourt/2017/19755/19755_2017_13_1504_15302_Judgement_24-Jul-2019.pdf(SUPREME COURT OF INDIA)
[3] https://main.sci.gov.in/jonew/judis/17167.pdf(SUPREME COURT OF INDIA)
[4] AIR 2001 AP 326, 2001 (2) ALT 437: MANU/AP/0919/2001: C.R.P. No. 5111/2000 (High Court of Andhra Pradesh at Hyderabad)
[5] 2003 SCC OnLine Bom 628 : (2004) 1 Mah LJ 62 : (2003) 5 Bom CR 228 : AIR 2003 Bom 387 : (2004) 106 (2) Bom LR 167 : (2004) 15 AIC 903 (Bom) : (2004) 3 ALT (DNC 29.1) 29 : (2004) 1 CCC 446 : (2004) 1 HLR 637 : (2004) 1 Civ LT 176): MANU/MH/0331/2003: (High Court of Bombay)
[6] MANU/DE/4846/2012 2001 SCC OnLine Del 1151 : (2002) 61 DRJ 314 : (2002) 95 DLT 459 : 2002 AIHC 1526 (DELHI HIGH COURT)