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



  @1                                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.


 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.

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 2 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
 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.
  @4                               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 2 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 ?

 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?

 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 2 court can ask for some other sufficient security.
 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.
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 ?
 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
 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,
in para 10 it was observed that, "A succession certificate is granted for a limited purpose. A court granting a succession 2 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."


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.
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.
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 2
through guardian. (In Re-Naryan Khanderao AIR 1933 Bombay 436)
 Limitation:- There is no limitation for applying Certificate of Succession or Legal Heirship.
 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.
 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?

 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.

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).
 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) 2 Bom.C.R. 580.
 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.
 @15                   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.
                                  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.
 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.
  @16                                 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.)
                      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.)
 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.



 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.


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