[Indian Succession Act] Surety Only Required For Issuing Letters Of Administration, Not For Issuance Of Probate Of Will: Gujarat High Court

The Gujarat High Court has ruled that furnishing surety and bond is not required for the issuance of probate to the executors of a Will. This requirement is only necessary for the issuance of letters of administration.

The division bench of Justices Biren Vaishnav And Nisha M. Thakore observed, “Looking to the provisions of the Indian Succession Act, the provision for submission of surety is provided for only in case of issuance of letters of administration and not for the issuance of probate of Will.”

The above ruling came in a First Appeal filed under Section 299 of the Indian Succession Act, 1925, challenging the order passed by the City Civil Judge, Ahmedabad, in a Civil Misc. Application whereby the Court granted probate of the Will made by one Ms. Gira Sarabhai who expired in July 2021. However, the grant of probate certificate was made subject to fulfilment and compliance with the requirement and condition of surety and bond as per para 256 of the Civil Manual and under Section 291 of the Indian Succession Act, 1925 and as stipulated in the City Civil Court Rules, 1921.

Gira Sarabhai executed a Will and testament in 2009, which was notarized and signed in the presence of witnesses. The applicants, who are also the appellants before the High Court, were appointed as executors of her Will to ensure its effective implementation. Consequently, they filed an application to obtain probate of the Will.

“Looking to the quantified value of the property and the undertaking filed by the appellants that they would faithfully administer the property and credits of late Ms.Gira Sarabhai and when the appellants are the executors selected and appointed by late Ms.Gira Sarabhai which signifies that she had full trust and faith in them, the condition of providing surety by the impugned order only to the extent of it granting such probate subject to fulfillment and compliance of requirement and condition of surety and bond as per Para 256 of the Civil Manual and under Section 291 of the Indian Succession Act and as stipulated in the City Civil Court Rules, 1961, is quashed and set aside only to that extent,” the division bench ruled.

Based on the application submitted by the appellants and the evidence provided in support of it, the Judge of the City Civil Court in Ahmedabad, after inviting objections and noting that none were raised, reviewed the material on record. The Judge subsequently allowed the application and directed that a probate certificate be issued jointly in the names of the applicants/appellants.

However, the Judge also stipulated that the grant of probate would be contingent upon the fulfilment and compliance with the conditions of surety and bond as specified in paragraph 256 of the Civil Manual and under Section 291 of the Indian Succession Act, 1925.

Upon receiving the order, the appellants filed an application to dispense with the requirement of submitting a surety. The Trial Court rejected this application, stating that once a final order is pronounced, no corrections can be made except for typographical errors. Consequently, the application was denied.

After hearing the submissions made by Senior Advocate Mihir Thakore, the Court expounded on Sections 218, 232, 234, 291, 227, and 248 of the Indian Succession Act. The Court observed that there is a settled distinction between probate and letters of administration. According to the Court, a probate is a 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, where the legator appoints a person he trusts to execute his Will. In contrast, in the case of letters of administration, a legatee or an heir is appointed by the Court.

The Court further observed that reading the provision of Section 291 indicates that, in relation to probate, the Court has the discretion to require the submission of a bond. Still, there is no provision or power to require a surety. Section 291, therefore, provides for providing a surety only in cases of letters of administration and not in cases where probate is granted.

Additionally, the Court noted that Clause 256 indicates that the words used are 'letters of administration' and not 'probate.' The clause provides that the concerned Judge should always take security before granting letters of administration.

“In other words, the order dated 22.08.2023 passed by the City Civil Court in Civil Misc. Application No.1039 of 2022 is modified to the extent that the probate certificate shall be issued in the joint names of the appellants without the condition of providing any surety and bond,” the Court held while allowing the appeal.

Case Title - Mihir Ramesh Bhatt & Ors. Versus Na

LL Citation: 2024 LiveLaw (Guj) 101

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