Is it necessary to obtain Probate of a Will ?

The position of Law in respect of Probate of Wills / Letters of Administration

Whereas, there was lot of confusion in my mind, as to whether it is necessary to obtain Probate of the Will / Letters of Administration, so as to transfer the property acquired by a legatee;

and whereas, Managing Committee of Cooperative Hsg Societies (in Mumbai) exercises complete discretion and has a general tendency to ask for Probate of the Will / Letters of Administration, to effect transfer of interest in the Shares of the deceased member, in the name of the beneficiary named in the Will;

I thought it, a fit subject to dwell upon and to find out the position of law in this regard, and I have come to the conclusion that Probate of the Will / Letters of Administration is required only in certain circumstances, as indicated in Section 213(1) of the Indian Succession Act, 1925.

At the outset, I crave leave to throw light on the law of testamentary succession as contained in Indian Succession Act, 1925, which may satisfy the readers that Probate / Letters of Administration is required only in certain circumstances and not in all the cases of transfer of Interest in the property. The relevant provisions are Sections 57, 104, 213.

The application of provisions of testamentary succession, i.e. in respect of Wills and Codicils, in Indian Succession Act, are broadly divided into two classes –

(a) geographical, i.e. (i) Local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay; (ii) Areas beyond the Local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay;

(b) religion based, i.e. (i) Hindu, Buddhist, Sikh or Jaina; (ii) Religions other than Hindu, Buddhist, Sikh or Jaina. Therefore…..

The provisions of testamentary succession in Part VI of Indian Succession Act, 1925 is applicable, as far as religions are concerned –

(a) to all Wills made by Hindu, Buddhist, Sikh or Jaina;

(b) to all Wills made by any other person (who is not Hindu, Buddhist, Sikh or Jaina), residing beyond the Local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay possessing any immovable property beyond such Local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay;

(1) Section 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.

Section 57(a) says that provisions of Wills and codicils as mentioned in the Indian Succession Act, 1925 are applicable to all Wills made by any Hindu, Buddhist, Sikh or Jaina residing within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay;

Section 57(b) says that provisions of Wills and codicils as mentioned in the Indian Succession Act, 1925 are applicable to all Will made by any person residing beyond the jurisdiction of the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay and where such person is having immovable property in those territories;

Section 57(c) says that provisions of Wills and codicils as mentioned in the Indian Succession Act, 1925 are applicable to all Wills made by any Hindu, Buddhist, Sikh or Jaina, the Will which is made after 01.01.1927 and where such Hindu, Buddhist, Sikh or Jaina is residing beyond the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such person is having either movable or immovable property.

(2) The issue of obtaining of Probate / Letters of Administration is contained in Section 213 of the said Act. The said section reads as –

Section 213 (1). Right as executor or legatee when established.- 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.

Section 213(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 1*[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.]

From the careful reading of aforesaid Section 213, I submit that the said Section requires obtaining of Probate / LOA by the Executor / Legatee ONLY WHEN (1) (a) the existence or the bonafides of the Will is resisted / challenged by any of the legal heirs / Legal Representative; or (b) when the existence or the bonafides of the Will is resisted / challenged by any other interested persons; AND (2)(a) a Suit is filed by the said Legal heir / Interested persons against the executor / Legatee claiming his share in the estate of the deceased; or (b) A Suit is filed by the Legatee against persons who are in possession of the estate of the deceased testator and thereby Executor / Legatee claiming the estate of the deceased as his rights under the Will.

And when any such Suit is filed, the Executor / Legatee can establish their right in the said Suit, only if they obtain Probate / LOA.

The above position can be illustrated with many rulings of HC and SC.

(a) The prohibition under section 213 of ISA 1925 is regarding establishing any right under the Will without Probate, and that section cannot be understood as one by which the vesting of a right as per the provisions of the Will is postponed until the obtaining of Probate or LOA.

The Will takes effect on the death of the testator and what S.213 says that is that the right as an Executor or as Legatee can be established in any Court only if Probate or LOA is obtained.

The requirement of obtaining Probate or LOA becomes relevant at the time when the establishment of right as Executor or Legatee is sought to be made on the basis of a Will in a Court of Justice – Cherichi versus Ittianam – AIR 2001 Ker 184.

(b) Section 213 of the Indian Succession Act, 1925 acts as bar to the establishments of rights of an Executor or legatee under the Will, unless Probate or Letters of Administration is obtained. However, this bar comes into play only when a right as an Executor or a Legatee under the Will is required to be established. – AIR 2004 SC 2060; AIR 2001 Ker 184.

(c) In a case before the Madras HC, a full Bench judgment, the Hon’ble Court said – The Plaintiff (who had challenged the Will) is entitled to succeed to the property being the heir under the intestacy which must be presumed until a Will is proved. The mere existence of Will does not necessarily displace title of the Plaintiff. It is necessary for the defendant (who is named as an Executor or Legatee under the Will) to go further and to prove the Will, i.e. to obtain Probate or LOA, to prove that Plaintiff has no title to the Property – 50 Mad 927 (FB); The said position was affirmed by Hon’ble SC in the case – AIR 1962 SC 1471, 1474.

Section 213(2) says that section 213 is not applicable to Mohammedans and that section 213 is applicable to those persons who are covered under Section 57(a) & (b).

(3) Now I crave leave to invite the most important and relevant Section of the Act, i.e. Section 104 of the Act. The said Section is in PART VI with the Heading TESTAMENTARY SUCCESSION and in CHAPTER VI with the Heading “Of the construction of Wills”

The said Section reads as, Section 104 – Time of vesting legacy in general terms – If a legacy is given in general terms, without specifying the time when it is to be paid, the legatee has a vested interest in it from the day of the death of the testator, and, if he dies without having received it, it shall pass to his representatives.

From the bare reading of the section, it can safely be argued that by virtue of this Section, the legatee gets a vested interest in the Property so bequeathed to him, and he becomes the owner of the property so bequeathed and he can deal with the said property in his lifetime in the manner he wishes, and he can even transfer the interest in the Property by gift, Will, or by other means of transfer as available under the laws of the land.

(4) In this background, it may be important to point out judicially recognized meaning of the word “Vested Interest” which is employed in Section 104 of the Succession Act.

The word vest is normally used where an immediate fixed right in present or future enjoyment in respect of a property is created. With long usage, the word “vest” has also acquired a meaning as an absolute or indefeasible right. Howrah Municipal Corporation versus Ganges Rope Co. Ltd, (2004) 1 SCC 663.

An interest is said to be “vested interest” when there is immediate right of present enjoyment or a present right for future enjoyment. Usha Subbarao versus B.E. Vishveswaraiah, (1996) 5 SCC 206, Para 8.

(5) In this background, it is profitable to invite the attention to Section 60(1)(m) of CPC, 1908, which inter alia, deals with the attachment of Properties of a judgment debtor, in execution of a decree.

The said section reads as –

Section 60. Property liable to attachment and sale in execution of decree? (1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, banknotes, Cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf :

Provided that the following particulars shall not be liable to such attachment or sale, namely:

(m) an expectancy of succession by survivorship or other merely contingent or possible right or interest;

I say that, Privy Council, in a case before it (AIR 1939 Privy Council 6) had held that a Contingent interest though transferable, but is not attachable; it is only vested interest that can be attached. The aforesaid view of the Privy Council was upheld by the Hon’ble SC in a case (AIR 1957 SC 255) before it.

In a case before Madras High Court, the Hon’ble Court posed a question to itself as – In the absence of any probate, whether the decree is a nullity, the decree which recognizes a right of the judgment debtor on the basis of unprobated Will ?

The Executing Court recognized the rights of the legatee on the basis of the unprobated Will. The Hon’ble High Court upheld the decision of the Executing Court, and inter alia, observed that – even if the Will was not probated, the title vested with the legatee immediately on the death of the propounder of the Will. (2006) 1 MLJ 354.

I submit that, from the above discussion, it can be argued that, any property bequeathed to a judgment debtor under a Will may be attached in execution of a decree, whether the Will is probated or not probated.

This position of law itself implies that the property acquired by a judgment debtor under a Will / law of succession, vests absolutely in the judgment debtor and he becomes the unqualified owner of the property(except as provided under section 213), and being this is the position of law, said properties of judgment debtor becomes vulnerable to attachment. This position is further fortified whilst section 60 in clear terms talks about property belonging to the judgment debtor.

(6) Now I seek to deal with legislative command enshrined in Section 30 of the Maharashtra Cooperative Societies Act, 1960.

Section 30 - Transfer of interest on death of member: (1) On the death of a member of a society, the society shall transfer of the deceased member to a person or persons nominated in or, if no person has been so nominated to such person as may be the heir or legal representative of the deceased member.

The heading of the aforesaid section has a transparent and unambiguous meaning – Transfer of “Interest” “on death of member”. The legislature has specifically used the word “Interest”.

Now we may consider deducing what is judicial meaning of the word “Interest”. Interest, in respect of any property (movable or immovable; tangible or intangible), is a very wide term and necessarily includes any kind of interest, a person is capable of having, in the property, whether vested, contingent, proprietary, possessory, trustee, etc.

Coming to rules and principles of interpretation of Statutes, 

It is established principle of Interpretation of Statutes that the Legislature is deemed not to waste its words or to say anything in vain. It should not be assumed that the Legislature used language without any purpose. It is a settled principle of construction that every word in a Statute is employed with some purpose in order to further the objectives laid down in the preamble of the Act itself. We must assume that the Legislature deliberately used that expression.

The intention of the legislature is manifested in the language which the legislature has chosen to employ. If the words of a statute are clear or unambiguous, such words must be given their ordinary, natural and recognized meaning attributed to them unless they have acquired a technical or special legal meaning. The courts must in general must take it absolutely for granted that the Legislature has said what it meant and meant what it has said

In Young versus Mayor, etc. of Leamington, Lord Blackburn said, “We ought, in general, in construing an Act of Parliament, to assume that the Legislature knows the existing state of the law. (1888) 8 AC 517, 526.

The legislature is presumed to have informed itself as to the state of the law on any subject as to which it undertakes to legislate. It is equally presumed that the legislature is in the know of the general principle of law and did not intend to overthrow a fundamental legal principle, in the absence of a contrary intention expressed in unmistakable terms.

It is an established rule of interpretation of Statutes that the legislature is taken to be acquainted with the actual state of law and it should be understood that the legislature has accepted the interpretation which has been put upon any legal expression.

(7) I finally invite the attention to a JUDGMENT WHERE SOCIETY ASKED FOR SUCCESSION CERTIFICATE / PROBATE / LETTERS OF ADMINISTRATION. In a case the Hon’ble The Maharashtra State Co-operative Appellate Court, Bombay, did justified the stand of Managing Committee / Society to seek Succession Certificate from the Applicant. In the said case of Sadashiv Vinayak Godbole versus The Panvel Co-op Hsg Society, 1985 C.T.J. 485, the Learned Bench of Shri M.H. Jadhav (President) and Shri S P Ghogre however justified the aforesaid stand of Managing Committee on the ground that the Society had received application from two persons for the transfer of share and interest of the deceased member. My client herewith annexes the copy of said judgment for the reference of the Managing Committee. (Para 7 of the judgment).

I further invite the attention to a landmark judgment given by Hon’ble Bombay High Court in the Letters Patent Appeal No.100 of 1984, in the case of Madhukar Vishnu Ghatnekar versus Gopal Vishnu Ghatnekar. In the said case, the Hon’ble Court, among other things, observed as saying that, “Will itself effects a disposition of property in favour of the legatee upon the testator’s death. 2002 (12) LJ soft 132.

The sum and essence of above discussion can be summarized as saying that – obtaining Probate of the Will / Letters of Administration may be necessary only in certain circumstances, as contemplated in u/s 213 of the Indian Succession Act, 1925; and Managing Committee of the Cooperative Hsg Societies (in Mumbai) have no discretion to ask for Probate of the Will / Letters of Administration in every case of transfer of interest in the Shares of the deceased member.

Very recently, SC in the case of Narinder Singh Rao versus AVM Mahinder Singh Rao, in Civil Appeal Nos.6918/6919 of 2011, (unreported) judgment dated 22.03.2013, in Para 17, inter alia, held that …. As we have come to the conclusion that the Will executed by Sumitra Devi was just and proper, the consequences of the Will would be like this: As a result of the Will of Sumitra Devi, Narinder Singh Rao- the appellant would not only inherit his own share in the property, which he had inherited from his father Rao Gajraj Singh but he would also inherit share of his mother Sumitra Devi as per her Will. Thus, the present appellant would become the owner of 2/9th share of the suit property. In our opinion the final finding of the High Court that the appellant is the owner of 2/9th share of the suit property is, therefore, absolutely correct.


It is also very important to understand the concept of “Tenant in Common” and “Joint Tenancy”. These concepts, however, has nothing to do with “Tenancy”. They suggest the nature of ownership of the property which is held by an individual.

In India, “Tenancy in Common” is followed, whereas in England “Joint Tenancy” is followed.

Tenancy in common implies, where any property is jointly held by two or more persons, every such person is absolute owner of the property, in equal share, unless there is an express or implied contract to suggest the percentage of holding.

Joint tenancy is situation where any property is jointly held by two or more persons, every such person is (not absolute) owner of the property, in equal share, unless there is an express or implied contract to suggest the percentage of holding.

Like for example, if a property is owned by two persons A and B jointly, than, unless there is any contract to suggest otherwise, both A and B will have 50% share in the property; and in the event of death of A, in case of “Tenancy in common”, the 50% share of A will go to the heirs of A, and B will continue to have his 50%; whereas in case of “Joint tenancy”, if A dies, B becomes the 100% owner of the property, that is to say, the share of A devolves upon B. Similarly, in case of "Tenancy in Common" both A and B are entitled to dispose of their 50% share by way of Will. 

As told me by my very learned senior colleague Shri Gokhale sab, there is only one Statute (Indian Companies Act, 1956) in our country, which gives both the option to hold the property, either on “Tenancy in common” or “Joint tenancy”. The Companies in their Articles of Association may provide that the Shares would be held by the members on the basis of “Joint Tenancy”.

The information contained herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although I endeavour to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate thereafter.

No person should act on such information without appropriate professional advice based on the circumstances of a particular situation.

Sandeep Jalan

Advocate

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