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

PROBATE //Probate is certificate from the Court which establishes the legal character of the person whom the grant is made.

PROBATE

                     Probate is certificate from the Court which establishes the legal character of the person whom the grant is made.

@1

             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)

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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.

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 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 2 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)

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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.

  @6                 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, 2 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)

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