Probate In India: Definition, Importance & Application

  Probate In India: Definition, Importance & Application                        @1                        A will  is a document that is drawn by a person with clear instructions as to how his/her assets are to be distributed on their death. In certain situations — and only in certain jurisdictions, such as Mumbai, Kolkota and Chennai — the executor of the will may need to apply for a probate in order to legalise it. This article will discuss, in detail, what a probate is, when one is needed in India, what the court fees are, and how it can be obtained. @2 What is a Probate? The Indian Succession Act, 1925 decrees that a probate is official proof of a will. A probate is issued to the executor, or the person who is authorized to implement or execute the will and thereby adds a legal character to the will. A probate, as defined in the India Sucessession Act, 1925, is ‘A copy of will certified under the seal of a court of competent jurisdiction with grant of administration of the

will- proof of will, Issuance of Succession certificate, Probate etc., Issuance of legal heirship certificate.




(Bombay Regulation VIII of 1827)


proof of will,    Issuance of Succession certificate, Probate etc., Issuance of legal heirship certificate.

          1)Will is a translation of the Latin word “voluntas” which was a term used in the text of Roman Law to express the intention of a testator. Thus, the will is an instrument by which a person makes disposition of his property to take effect after his death, and which is, in its own nature, ambulatory and revocable during his life.

2) Indian Succession Act, 1925 is the principal legislative measure in India dealing with the substantive law of testamentary succession in regard to persons other than Muslim and intestate succession in regard to persons other than Hindus and Muslims. ( Ref: para 1.1 law commission report No.110)
Section 3 empowers the State Government to exempt any race, sect, tribe from applicability of the Act.

3) Wills in Hindu & Muslim law: In Hindu law, there was, originally, no concept of will. No synonym for the word “will” was to be found in the whole of Sanskrit literature. But the institution of will in all its aspect (as applicable to Hindus) was brought into being by judicial decision during British period. A Hindu will, executed before 1870, could be in writing or oral, and no attestation or other formalities were required. Even signature was not necessary in law. In 1870, the Hindu Wills Act introduced various formalities for the execution of will. Amongst Muslims, tradition of making Wills goes to at least as early as the prophet. The Indian Succession Act does not apply to wills executed by Muslims.
(Ref: paras 2.15, 2.16 & 2.16 of law commission No.110 report)
4 Indian Succession Act, 1925 consolidates following 12 earlier
2 Central Acts passed between 1841 and 1903.
1. The Succession (Property Protection) Act, 1841
2. The India Succession Act, 1865
3. The Parsi Intestate Succession Act, 1865
4. The Hindu Wills Act, 1870
5. The Married Women's Property Act, 1874
6.Probate and Administration Act, 1881
7. The District Delegates Act, 1881
8.Probate and Administration Act, 1889
9. The Succession Certificate Act, 1889
10.Probate and Administration Act, 1890
11. The Native Christian Administration of
Estate Act, 1901
12.Probate and Administration Act, 1903
5) The Act has been divided into eleven parts and these parts have been subdivided into Chapters. Part-IX relates to probate, letter of administration and administration of assets of the deceased and Part-X regulates the grant of succession certificate.
6) The Indian Succession Act broadly divides succession into
intestate and testamentary succession. While the provisions of the Act  relating to intestate succession are applicable to particular classes or communities of people leaving the personal law, statutory and otherwise of the two major communities in India, namely Hindus and Muslims, untouched. The provisions of the Act dealing with testamentary succession are generally made applicable to everyone in India except those exempted
under the Act and a few others.
2 ) (Ref: law commission report no. 247)

7) Indian Succession Act in Section-2 (h) defines will as, “the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death”. Section 59 makes it legal for every person of sound mind not being minor to dispose of his property by will. One who makes will is “testator”. Legatee is beneficiary mentioned in the Will. Executor is the person, testator appoints to execute his last Will, who represents the estate of the deceased. When, there is no executor, administrator is appointed by the competent authority to administer the estate of the deceased. Instruments made by the testator to supplement the will is codicil. Propounder of will, means one who offers or proposes a
document as being authentic or valid.


8 Privileged Will:-The wills which could be made by any Solider, Airman or Mariner engaged in actual warfare are called privileged wills. To
make privilege will age of such persons should be above 18 years. Such will could even be oral. However, at the expiration of one month such oral will shall be null in case testator survives.
(Ref: Sections 65 and 66 of the Act)
In the case of Ratnammal Vs. Thilaimal, AIR 1957 AP 336,337, in  para 6 it was held this provision is not applicable to exempted category. It means Hindu can not make privileged Will.

9 )Unprivileged will:-Unprivileged wills can be executed in a manner given in Section-63 of the Indian Succession Act. The testator has to sign or affix his mark to the will or it can be signed by some other person in his presence and by his direction. The signature or the mark of the testator or the signature of the person signing for him, shall be so placed that it shall  appear that it was intended thereby to give effect to the writing as a will. The will is required to be attested by two or more witnesses, each of whom has seen the testator to sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person, but it shall not necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

10) Will under Muslim law:-A Will under Mohammedan Law is called as Wasiyat, which means a moral exhortation or a declaration in compliance with moral duty of every Muslim to make arrangements for the distribution of his estate or property. The Mohammedan Law restricts a Muslim person to bequeath his whole property in a will and allows him to bequeath 1/3rd of his estate by writing will, which will take effect after his death. A will may be in the form of oral or written if the will is in writing need not be signed, if signed need not be attested. A will can be made by a person who is of sound mind, major and possessing a absolute title, in favour of a person who is capable of holding property except unborn persons and heirs. A Muslim person who is allowed to bequeath 1/3rd of his estate, he can exceed its limit on testamentary power of 1/3rd to 1/4th in case where heirs give consent or only heir is husband or wife.
11 Holographic Will:- Means will which is wholly in the handwriting of the testator. A greater degree of presumption arises in the case of `holograph Wills'.

12 A Will must be construed objectively and conclusion must be
deducted by a rational process of reasoning. Intention of the testator to be gathered from the recitals in the Will, surrounding circumstances disclosed from the Will, underlying scheme of the disposition made under the Will as also the reasons for making bequest therein. The intention of the testator should be given primary importance and the Court should construe the words in the background of the intended meaning which the testator himself described to a scribe to the words used.
(Refs: Gnanambal Ammal Vs. T. Raju Aiyar, AIR 1951 SC 103, Bhura Vs.
Kashi Ram (1994) 2 SCC 111, Navneet Lal Vs. Gokul and Ors, AIR 1976 SC
13) It is well settled that, mode of proving the Will does not differ from that, proving any other documents except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act, 1925. The onus to prove the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of Will, proof of testamentary capacity of and proof of the signature of the testator, as required by law, need to sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to
explain them to the satisfaction of the Court before the Will can be accepted as genuine. Proof in either case can not be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters. In case the person contesting the Will alleges undue influence, fraud or coercion, the  onus will be on him to prove the same.(Refs: H. Venkatachala Iyengar Vs. B.N. Thimmajamma & others, AIR 1959 SC 443, Smt. Jaswant Kaur Vs.
Smt Amrit Kaur, AIR 1977 SC 74, Bharpur Singh and Others Vs. Shamsher  Singh, AIR 2009 SC 1766)
4) The provisions regarding testamentary succession in Part-VI of  the Indian Succession Act are applicable to all cases of testamentary  succession, except saved under Section 58(1) of the said Act, where one of the exception is Wills of Mohammedan.
15) How to prove execution of document required by law to be
attested is given in Section-68 of the Indian Evidence Act. The proof of signature and handwriting of a person alleged to have signed or written document produced can be proved in a manner given in Section-67 of the said  Act. Unless one attesting witness has been called for the purpose of proving the execution of will, it cannot be used as evidence. Provided such an attesting  witness be alive, can be subject to the process of court and be capable of  giving evidence.
16) When the attesting witness cannot be found, then as provided in  Section-69 of the Indian Succession Act, it must be proved that attestation of one attesting witness at least in his handwriting and that the signature of the person executing the document is in the handwriting of that person. However, the execution of will can be proved against the party to such Will without  examining attesting witness in case such person admits execution. Section-71  of the Indian Evidence Act allows to prove the execution of Will by other evidence where the attesting witness denies or does not recollect the  execution of the document.

17) In the case of Jankinarayan Bhoir V/s. Narayan Namdeo Kadam,  AIR 2003 SC 761, 

one attesting witness and scribe were examined. Attesting witness has not supported the execution of will deed. However, the scribe deposed regarding the execution of the will deed. The trial court held that the execution of will was not proved. In the High Court it was held that the execution of will has been proved. When the matter came up before the Hon'ble Supreme Court, it was observed that the evidence of Sinkar, the only attesting witness, does not satisfy the mandatory requirements of Section-68 of the Evidence Act. It was held that Section-71 has no application when the one attesting witness, who has been summoned, has failed to prove the execution of the will and other attesting witness though available has not been examined. It was also held that when the document is not proved as mandatorily required under Section-68 of the Evidence Act, the provision of Section-71 of the Evidence Act, which is permissive, and enabling in certain circumstances as discussed above does not help the respondent.
18) In the case of S.R.Shrinivasa and ors. V/s. S.Padmavathamma, (2010) 5 SCC 274, 

the Hon'ble Supreme Court observed that "the effect of subscribing a signature on the part of the scribe cannot be identified to be of the same status as that of the attesting witnesses. The animus to attest, thus, is not available, so far as the scribe is concerned. He is not a witness to the will but a mere writer of the will. Presence of scribe and his signature appearing on the document does not by itself be taken to be the proof of due attestation”.

19) Proof of 30 Years Old Will:-In the case of Bharpur Singh Vs. Shamsher Singh, 2009(3) SCC 687, 

it was held that a presumption regarding documents 30 years old does not apply to a Will. A Will has to be proved in terms of Section 63(c) of the Succession Act read with Section 68 of the Evidence Act.

20) Registration of WILL: Indian Registration Act, 1908 does not mandate registration of Will. Registration of will is no guarantee that it was  executed duly and validly as per the provisions of Section 63 of the Indian  Succession Act. Registration of a document does not dispense with the need of proving the execution and attestation of a document which is required by law to be proved. Presumption attached to the registered documents is only in  respect of matters of the registration as per requirement of provision of Indian Registration Act and not in respect of factum of attestation within the meaning of Section 63(c) of Indian Succession Act and Section 68 of Indian Evidence Act. (Ref: Bhagat Ram Vs. Suresh, AIR 2004 SC 5)


21 The burden of proof: The onus of proving the will is on the
propounder and in the absence of suspicious circumstances surrounding the  execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain
them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the  onus is on him to prove the same. Even where there are no such pleas but the  circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's  mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the21 The burden of proof: The onus of proving the will is on the21 The burden of proof: The onus of proving the will is on the21 The burden of proof: The onus of proving the will is on the  propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain  them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. These settled principles are narrated in the case of Shashi Kumar Banerjee & Ors vs Subodh  Kumar Banerjee, 1964 AIR (SC) 529 by a Constitutional Bench: P.B. Gajendragadkar, K. Subbarao, K.N. Wanchoo, N.R. Ayyangar and J.R.. Mudholkar-JJ.

21) Revocability: Section 62 of the Indian Succession Act deals with  the characteristic of a Will being revocable or altered anytime during the lifetime of the testator. S. 70 of the Indian Succession Act provides the manner in which it can be revoked. A mere intention to revoke is not an effective revocation. The revocation of the Will should be in writing and an express revocation clause would revoke all the prior Wills and codicils. If there is no express clause to the effect then the former Will would become invalid to the extent of its inconsistency with the latest Will, this is known as an implied revocation (however it should be shown that the differences are irreconcilable). However, if there is no inconsistency between the Wills then they cannot be considered as two separate Wills but the two must be read together to indicate the testamentary intention of the testator. Revocation can also be made in writing through declaring an intention to revoke and the writing must be signed by the testator and attested by two witnesses. The deed of revocation has to be executed in the same way as the Will itself. The Will maybe burnt or torn by the testator or by some other person in his presence and by his direction with the intention of revoking the same. The burning of the Will must be actual and not symbolic. The burning must destroy the Will atleast to the extent of his entirety. Further the Will need not
be torn into pieces. It would be sufficient if it is slightly torn with the intent of revocation. The Will can be revoked expressly by another Will or codicil, by implied revocation, by some writing, by burning or tearing or by destroying otherwise. Cancellation of a Will by drawing lines across it is not a mode of revocation. Under the Hindu Law the Will is not revoked by marriage or by subsequent birth. 
22) Alterations: Section 71 of Indian Sucssion Act is applicable to alterations if they are made after the execution of the Will but not before it. The said section provides that any obliteration, interlineations or any other alteration in a Will made after its execution is inoperative unless the alteration is accompanied by the signatures of the testator and the attesting witnesses or it is accompanied by a memorandum signed by the testator and by the attesting witnesses at the end of the Will or some other part referring to the alterations. the alterations if executed as required by the section would be read as a part of the Will itself. However, if these requirements are not fulfilled then the alterations would be considered to be invalid and the probate will be issued omitting the alterations. The signatures of the testator and the attesting witnesses must be with regards to the alteration and must be in proximity of the alteration. Further they should be in the Will itself and not in a separate distinct paper. But if the obliteration is such that the words cannot be deciphered then the Will would be considered as destroyed to that extent.

23) Wording of The Will: Section 74 of the Indian Succession Act provides that a Will maybe made in any form and in any language. No technical words need to be used in making a Will but if technical words are used it is presumed that they are in used in their legal sense unless the context indicates otherwise. Any want of technical words or accuracy in grammar is immaterial as long as the intention is clear. Another general principle applied is that the Will is to be so read as to lead to a testacy and not intestacy i.e if two constructions are possible then the construction that avoids instestacy should be followed. Further there is another principle, which says that the construction that postpones the vesting of legacy in the property disposed should be avoided. The intention of the testator should be decided after construing the Will as a whole and not the clauses in isolation.
24) Execution of a Will: On the death of the testator, an executor of the Will (executor is the legal representative for all purposes of a deceased person and all the property of a testator vests in him. Whereas a trustee becomes a legal owner of the trust and his office and the property are blended together) or an heir of the deceased testator can apply for probate. The court will ask the other heirs of the deceased if they have any objections to the Will. If there are no objections, the court grants probate. A probate is a copy of a Will, certified by the court. A probate is to be treated as conclusive evidence of the genuineness of a Will. It is only after this that the Will comes into effect.

25) Signature of The Testator: Section 63(a) of the Indian Succession Act provides that the testator shall sign or affix his mark. If the testator is unable to write his signature then he may execute the Will by a mark and by doing so his hand maybe guided by another person. In another words a thumb impression has been held as valid.
26) Restrictions on A Will: Transfer to unborn persons is invalid. Where a bequest is made to a person by a particular description, and there is no person in existence at the testator's death who answers that description, the bequest is void. S.113 of Indian Succession Act, 1925 provides that for a transfer to an unborn person, a prior interest for life has to be created in another person and the bequest must comprise of whole of the remaining interest of the testator.
In Girish Dutt v. Datadin AIR 1934 Oundh 35, the Will stating that the property was to be transferred to a female descendant (who was unborn) only if the person did not have any male descendant. The Court held that since the transfer of property was dependent on the condition that there has to be no male descendant, the transfer of interest was limited and not absolute and thereby the transfer was void. For a transfer to a unborn person to be held valid, absolute interest needs to be transferred and it cannot be a limited interest.

27) Transfer made to create perpetuity: Section 114 of the Indian Succession Act, 1925 provides that no bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the lifetime of one or more persons living at the testator's death and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong. The rule against perpetuity provides that the property cannot be tied for an indefinite period. The property cannot be transferred in an unending way. The rule is based on the considerations of public policy since property cannot be made inalienable unless it is in the interest of the community. The rule against perpetuity
invalidates any bequest which delays vesting beyond the life or lives-in-being and the minority of the donee who must be living at the close of the last life.
Hence property can be transferred to a unborn person who has to be born at the expiration of the interest created and the maximum permissible remoteness is of 18 years i.e the age of minority in India.

28) Transfer to take effect on failure of prior Transfer: S.116 of the Indian Succession Act provides that where by reason of any of the rules contained in sections 113 and 114 and bequest in favour of a person of a class of persons is void in regard to such person or the whole of such class, any bequest contained in the same Will and intended to take effect after or upon failure of such prior bequest is also void. The principle of this section is based upon the presumed intention of the testator that the person entitled at the subsequent limitation is not intended to be benefited except at the exhaustion  of the prior limitation. In Girish Dutt case one S gave property to B for life and after her death if there be any male descendants whether born as son or daughter to them absolutely. In the absence of any issue, whether male or female, living at the time of B’s death, the gifted property was to go to C. it was held that the gift in favour of C was dependent upon the failure of the prior interest in the favour of daughter and hence the gift in favour of C was also invalid. However alternative bequests are valid. 

29) Probate is certificate from the Court which establishes the legal character of the person whom the grant is made.
30) From an early date the Supreme Court granted probate of Hindu and Mohammedan wills. The practice varied greatly from time to time, and it was never perhaps very satisfactorily determined upon what basis the jurisdiction rested. But the Supreme Court never applied the English rule as to the necessity for probate to Hindu and Mohammedan wills, nor do they attribute to such probate, when granted, the English doctrines as to the operation of probate. Under the system, a Hindu or Mohammedan executor took no title to property merely as such by virtue of the probate. In the case of Mohammedan executors such a title was created for the first time by Probate and Administration Act.
(Ref:para 2.19 of law commission report No. 110)
31) Section 2(f) of the Indian Succession Act, 1925 defines 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.

32 )Scope of Inquiry by the Probate Court: The Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the probate Court.
( Refs: Ishwardeo Narain Singh vs Sm. Kamta Devi And Ors., AIR 1954 SC 280. Ratnaprabha W/o Digambar Nemade and Ors. Vs. Kisan Laxmanrao Deshmukh, 2015 ALL M.R.227 Nagpur, Vatsala Srinivasan Vs. Narisimha Raghunathan since deceased Smt. Shyamlala Raghunathn, 2011 (2) Mh.L.J. 953)

33 )Is Probate Compulsory: A probate for a will is required to be obtained only under circumstances mentioned in Section 213 of Indian Succession Act, 1925. The bar that is imposed by this section 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. The section does not prohibit the will being looked into for purposes other that those mentioned in the section. 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 Tribunal. The section is a bar to everyone claiming under will, whether as plaintiff or defendant, if no probate or Letter of Administration is granted.
34 )A combined reading of Sections 57 and 213 of the Act would show that where the parties to the will are Hindu and the properties in the dispute are not in the territories falling under Section 57(a) and (b), of sub-section 2 of Section 213 of the Act applies and sub-section (1) has no application. As a consequence probate will not be required to be obtained by a Hindu in respect of a will made outside those territories or regarding the immovable properties situated outside those territories.
(Refs: Clarence Pais & Ors Vs. Union of India, AIR 2001 SC 1151, Jyoti Singhal Vs.The State, Mh.L.J. 1979 Nagpur 308, Probate not required in Vidharbha,2000(1) BCR 417; 2003(5) 228; 2004(supp) BCR 737; 2006(1) BCR 672)

35) The provisions regarding the issuance of succession certificates are found in Part-10 of the Indian Succession Act. Supplementary provisions are also found in paras 304 and 305 of the Civil Manual in Chapter-14. The succession certificate can be applied for the debt or the security, as contemplated in Sections-370 and 374 of the Act. The jurisdiction to issue succession certificate, as found in Section-371 of the Act, is with the District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or, if such deceased had no fixed place of residence, then the District Judge within whose jurisdiction any part of the property of the deceased may be found can exercise the jurisdiction.
36 )Section-388 of the Act authorizes the State Government to invest any court inferior in grade of a District Judge with power to exercise the function of District Judge. The Sub-section 1 and Sub-section 2 of Section 388 of the Act are similar to Sub-Section 1 and Sub-section 2 of Section 26 of the then Succession Certificate Act, 1889. On 25/10/1890 by Govt. Notification all the Civil Judges are invested with the concurrent jurisdiction with the District Judge, with the functions of District Court in Part X of the Act. The said notification saved by virtue of Section 24 of the General Classes Act, 1897.   Part X is regarding issuance of Succession Certificate. The notification has also the effect of investing Civil Judges with power to hear application made under Section 2 of the Bombay Regulation-VIII, 1827.
37 )Under Section 28-A of The Maharashtra Civil Courts Act, 1869 the High Court is authorized to invest the Civil Courts with all or any of the powers of the District Court regarding Succession, Probate or Letter of Administration. Accordingly, the Civil Judges (Senior Division) are authorized with all the powers of District Judge, to take cognizance of any contested proceedings under Indian Succession Act, 1925 38 Section-265 of the Act is regarding the powers of Hon'ble High Court to delegate the powers of District Judge to Judicial Officers for granting probate and letter of administration in non contentious cases. Para 305 (1) of the Civil Manual reads as follows. “305 (I) Under Section 265 of the Indian Succession Act, 1925, the High Court has appointed all Civil Judges to act for the District Judge as delegates to grant probate and letters of administration in non-contentious cases arising within the local limits of their respective jurisdiction.” It means Civil Judge Junior Division can exercise powers in non-contentious proceedings for issue of Succession, Probate and Letter of Administration, to the extent of their pecuniary jurisdiction. However, by virtue of High Court Notification under Section 28-A of the Maharashtra Civil Courts Act, 1869 in all contentious matter of Succession, Probate and Letter of Administration, Civil Judges ( Senior Division) got jurisdiction. 
39 )The particulars like ordinary place of deceased, where the property is located, names and address of family members and relatives of the deceased, under which right the petitioner claims, the debt and security in respect of which the certificate is applied, the signing and verification of the petition in the manner prescribed for the plaint etc. should contain the application.
40) Procedure for issuance of succession certificate is found in Section-373 of the Act. First date should be for the hearing on the application and issuance of notice. Special notice of the application may be issued on any person whom such notice be given in the opinion of the Judge. Notice be affixed on conspicuous part of the Court House. Public notice should be issued in a manner and subject to the rules made by the Hon'ble High Court. On fixed date the court should proceed to decide the application in a summary manner. When the court decides the rights in the applicant, the Judge shall make an order for grant of succession certificate. Where the court cannot decide the right to the certificate without determining question of law or fact in a summary manner, he may still order for issue of certificate if he found that applicant has prima facie the best title. In case of more than one applicant, the Judge may decide to whom certificate be issued having regard the extent of interest of that applicant and the fitness in other respect. In the certificate the debt and valuable security are to be mentioned. Section-377 provides that the succession certificates be issued in the forms set forth in Schedule VIII of Indian Succession Act.


Whether taking security is necessary for issue of succession certificate ?

41) Where inspite of fact that Judge cannot decide the right to certificate, issues certificate on the basis of prima facie best title or where more than one applicant are there, however the certificate is issued in the name of one applicant, Section-375 mandates taking of security as a condition precedent for grant of certificate.
What should be the contents of security bond?
42) The applicant should undertake to render an account of debts and securities received by him. He should also undertake to indemnify the persons who may be entitled to the whole or any part of debt and security. The applicant and the surety shall also undertake to deposit the amount into the court if so directed. Similar bond should be taken from the surety, which could be one or more, as directed by the court. Instead of taking surety, the court can ask for some other sufficient security.
43) Assigning of Bond: After issuance of succession certificate when it is found that some other person is entitled to the debt and security in the certificate, then the petitioner can be asked the money received be paid into the court. The court can also assign the bond or other security to some proper person and that person shall there upon be entitled to sue thereon in his own name as if such bond or security had been originally given to him instead of the Judge. Such person can recover, as a trustee for all persons interested, such amount as may be recoverable.
44) The succession certificate can empower the person to whom the certificate is issued to receive interest or dividends on the securities. Such person can also be empowered to negotiate or transfer the securities.

Court fees on the succession certificate ?
45) The sum equal to the court fee payable under the Court Fees Act on the certificate to be issued are required to be deposited. When the application is allowed, amount deposited is expended under the direction of the Judge for purchase of stamp to be used. Any sum received but not expended shall be refunded to the person depositing the amount.

Legal effect of Certificate
46) Succession certificate issued by the court is conclusive as against the persons owning such debts or liable on such securities. The succession certificate simply affords protection to the parties paying debts. It is thus clear that there is absolutely no adjudication of title of the deceased. In the case of C.K. Prahalada & Ors. V/s. State of Karnataka, MANU/SC/7618/2008, in para 10 it was observed that, "A succession certificate is granted for a limited purpose. A court granting a succession 
certificate does not decide the question of title. A nominee or holder of succession certificate has a duty to handover the property to the person who has a legal title thereto."

47) Effect of Nomination :- In the case of Smt.Sarbatidevi and another V/s. Smt.Ushadevi, (1984) 1 SCC 424, the Hon'ble Supreme Court laid down that a mere nomination does not have the effect of conferring to the nominee any beneficial interest in the amount payable under the Life Insurance Policy, on death of the insurer. The nomination only indicates the hand which is authorized to receive the amount on payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession.

48) Res-judicata :- Finding recorded in a succession proceeding does not operate as res-judicata in the subsequent suit. In the Joginder Pal V/s. Indian Red Cross Society and Ors., (2000)8 SCC 143, it was laid down that in a subsequent suit the crucial issue must be decided afresh untrammlled or uninfluenced by any finding made in the proceedings for grant of succession certificate. In the case of Madhavi Amma Bhavani Amma and Ors. V/s. Kunjikutty Pillai Minakshi Pillai and Ors., (2000)6 SCC 301,
it was held that any adjudication made under Part-X which includes Section- 373 does not bar raising of the same question between the same parties in any subsequent suit or proceedings.
49) Issuance of Succession certificate to minors: Only the person who has right to debt can apply for Succession Certificate. There is no specific bar, as in case of probate and letter of administration, for grant of Succession Certificate to minors. It can be granted to a minor if applied  through guardian.

(In Re-Naryan Khanderao AIR 1933 Bombay 436)

50) Limitation:- There is no limitation for applying Certificate of Succession or Legal Heirship.
51) Succession of Hindu, Sikh, Jain and Buddhist are taken place in accordance with Hindu Succession Act, 1956. Succession to Mohammedan takes place in accordance with their personal laws. Indian Succession Act takes care of intestate succession of Christian and to whom provisions of Special Marriage Act are made applicable. Chapter III, Part V of the Act deals with intestate succession regarding Parsi.
52 )Section 370 bars the grant of a Succession Certificate, inter alia, in cases where letter of administration or probate is mandatory. Letter of administration are mandatory in the case of Christian other than Indian Christian dying intestate. In the case of probate, the Will has to be proved and it is understandable that without proof of the Will, the payment should not be made on the strength of the Succession Certificate. 
(Ref. Para 48.4 of law commission report no.110)
Whether debts includes movable property that has been pledged?
53) In the case of Ranchhoddas Goviddas Banatwala, (1976) 78 Bom. L.R. 219, 233 the question arose whether a Succession Certificate could be granted in respect of gold or ornaments pledged by the deceased with the bank. It was held that the pledgee's obligation to return to the pledger's heirs the pledged movable property was not a 'debt', as it was not a specific or ascertained or liquidated sum of money.
(Ref. Para 48.22 of law commission report no.110)
54) Succession certificate is not required to claim compensation sanction on account of the death of the deceased. The compensation was not an asset belonging to the deceased but an amount which the legal representatives of the deceased can claim on their own account. (Ref.: Rukhsana (Smt.) and others V/s. Nazrunissa (Smt.) and another, (2000) 9 SCC 240.

55) Appeal against the order issuing Succession Certificate:The Civil Judge Senior Division, when issues Succession Certificate it exercises jurisdiction under Sub-Section 1 of Section 388 of the Act and therefore in view of proviso to Sub-section 388 appeal under Section 384 of the Act would lie to the District Judge and not to the High Court, irrespective of the value of the subject matter of the application for grant of Succession Certificate.
(Ref: Para 304 of Civil Manual & Shri Vitthal Ramchandra Mali Vs. Laxi Ganpati Mali and Anr, AIR 2006 Bom 298)


Legal Heirship Certificate, (Bombay Regulation VIII of 1827).56) In the case of Umaji Keshao Meshram and Ors. V/s. Smt.Radhikabai, the Hon'ble Supreme Court, while considering the question as to whether an intra-court appeal was maintainable before the Division Bench of the Hon'ble Court under Clause-15 of the Letters Patent, traced the history of 26 Regulation known as "The Elphinston Code". In the year 1773, the British Parliament asserted its authority and control over the East India  Company, both in India and England by enacting Regulating Act. On the recommendation of the committee, set up in 1820, by Governor Elphinston, 26 Regulation known as 'Elphinston Code' were passed, one of which is Bombay Regulation-VIII of 1827. It was continued as a Law in force under
Article-327 of the Constitution of India, as held by Hon'ble Bombay High Court in the case of Anthony Fernandes and Ors. V/s. Unknown, 1993 (1)  Bom.C.R. 580.
57) Section 390 of the Indian Succession Act, 1925 makes the provisions regarding the issuance of succession certificate applicable for issuance of legal heirship certificate. We know issuance of succession certificate is confined to debt and valuable security. However, legal heirship certificate can be isued in respect of movables as well as immovable property of deceased.
58 )Under Section-2 of the Regulation the formally recognizes the heir of the deceased. When the complicated or difficult nature of question regarding the rights of the parties arises in the proceedings, the judge may suspend proceedings in the application for issuance of heirship certificate, until the question has been tried by a regular suit, instituted by one of the parties. Section-7 authorizes an heir holding the proper certificate to do all acts and grant all deeds competent to legal heirs. Such legal heir may sue and obtain judgment in any court in his capacity as such legal heirs.
59) The legal heirship certificate confers no right to the property, but only indicates the person who, for the time being, is in the legal management of the property of the deceased. Such certificate does not affect the rights of any other person. When the court finds some other person has preferable right, it can annulled such certificate. Similarly, the refusal of a certificate shall not finally determines the rights of the person to whom the certificate is refused.
60) In the case of Ganpati Vinayak Achwal, 2014(6) Mah.L.J. 685,
it was held that, "an heirship certificate does not bestow the status of an heir upon a person. Grant of such a certificate is only a formal recognition of his existing status as an heir. An heir, or executor or legal administrator, by his such status, can assume management of the property of the deceased even without a formal recognition by the court. A person may obtain a heirship in any of the three situations i.e. (i) if he so desires (ii) where his right as an heir is disputed, and (iii) in order to give confidence to the persons in possession of or indebted to the estate and to deal with them. Thus grant of heirship certificate is solely, for the convenience of the heir. Beyond that, it is of no significance.
61)The certificates are issued in the prescribed proforma. When the certificate is issued in respect of the property, the court fee is payable in accordance with Article-10, read with Article-12 of the Maharashtra Court Fees Act. However, when such certificate is applied merely for formal recognition without reference to the property, or for applying job on compassionate ground or for any other office purpose, the court fee is not payable . ( Ref: Shri Ashok S/o Diga Deng Vs. State of Mah., W.P.No.7309/2009, decided on 21.11.2009, by B.R. GAVAI J.)
62)The right to apply for heirship certificate is also a continuous right which is capable of being exercised as long as the object of the right as an heir exist. The right to apply for heirship can, therefore, be exercised at any time after the death of the deceased as long as the right to do so exists.
(Ref: Shri. Ganpati Vinayak Achwal, 2015(2) ALL M.R. 285 Bom.)63)In the case of Vilas Sadanand Sapre and Ors. V/s. Civil Judge (Sr.Dn.), Amravati, decided on 16th March, 2011, Hon'ble High Court held that it was not necessary for petitioner Anuradha to get herself appointed as a guardian of petitioner Vilas, who was mentally retarded, under the provisions of Section-50 to 54 of the Mental Health Act, 1987.

64)Up shot of the above summary is that the Will is governed by special provisions insofar as its proof is concerned. It has to be proved in the manner provided under the Evidence Act and Indian Succession Act. The certificate of Legal heirs Succession, Probate, does not conclusively determine title to the person in whose favour the certificates are granted. wherein it is held that, the delay in recording the statements casts a serious doubt about their being eye-witnesses to the occurrence. It may suggest that the investigating officer was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced.


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