SC ruling on 'probate of will' under Indian Succession Act

By T. Padmanabha Rao

NEW DELHI, FEB. 25. The bar that is imposed by Section 213 of the Indian Succession Act, 1925 - in the matter of obtaining `probate' of the `will' under which the right is claimed as an executor or legatee - ``is only in respect of the establishment of the right as an executor or legatee and not in respect of the establishment of the right in any other capacity, and the section does not prohibit the will being looked into for purposes other than those mentioned in the section,'' the Supreme Court has emphasised.

``The bar to the establishment of the right is only for its establishment in a court of justice and not its being referred to in other proceedings before administrative or other Tribunals,'' the Bench said and added ``the section is a bar to everyone claiming under a will, whether as plaintiff or defendant, if no probate or letter of administration is granted.''

Delivering the judgment, Mr Justice S. Rajendra Babu dismissed connected writ petitions from two Indian Christians seeking the court to restrain the Union of India from enforcing the provisions of Section 213 of the Act against the Indian Christians.

The plea of the petitioners - which was repelled by the Bench - was that there was no rational basis for making the requirement of `probate' necessary for only a limited section of Indian citizens such as Indian Christians excluding other sections.

The Bench, on analysis of provision of the Act, noted ``it is applicable to Parsis after the amendment of the Act in 1962 and to Hindus who reside within the territories which on September 1, 1870 were subject to the Lt.Governor of Bengal or to areas covered by `original jurisdiction' of the High Courts of Bombay and Madras and to `all wills' made outside those territories and limits so far as they relate to immovable property situate within those territories and limits. If that is so, it cannot be said that the section is exclusively applicable only to Christians,'' the Bench held.

``The differences are not based on any religion but for historical reasons that in British Empire in India, probate was required to prove the right of a legatee or an executor but not in Part `B' or `C' states, the Bench said and added that position has continued even after the Constitution had come into force.''

``Historical reasons may justify differential treatment of separate geographical regions provided it bears a reason and just relation to the matter in respect of which differential treatment is accorded,'' the Bench observed adding that ``Uniformity in law has to be achieved, but that is a long drawn process.''

``The scope of Section 213(1) of the Act is that it prohibits recognition of rights as an executor or legatee under a will without production of a probate and sets down a rule of evidence and forms really a part of procedural requirement of the law of forum, the Bench which included Mr Justice R C Lakhoti said and pointed out that Section 213(2) of the Act indicates that its applicability is limited to cases of persons mentioned therein.''

``The effect of Section 213(2) of the Act is that the requirement of probate or other representation mentioned in sub- section (1) for the purpose of establishing the right as an executor or legatee in a court is made inapplicable in case of a `will' made by Mohammedans and in the case of `wills' coming under Section 57(c) of the Act,'' the Bench observed.

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