“Law Of Wills”- Questions & Answers By Justice V Ramkumar [Part-XII]

Ans. The prohibition under S.213 of the Act is regarding establishing any right under the Will without getting probate or letters of administration and that section cannot be understood as one by which the vesting of right as per the provisions of the Will is postponed until the obtaining of probate or letters of administration. The Will will take effect on the death of the executant of the Will and what S.213 of the Act says is that the right as executor or legatee can be established n any court of justice only if probate or letters of administration is obtained.

What is said in S.213 of the Act is a procedure regarding establishment of right as executor or legatee under a Will. What is stated in S.213 of the Act becomes relevant when such right is sought to be established in any Court of justice and the necessity of getting probate or letters of administration has to be decided with reference to the time when the right as executor or legatee is sought to be established. (Vide paras 7 and 11 of Cherichi v. Ittianam AIR 2001 Ker. 184 – K. S. Radhakrishnan, G. Sasidharan – JJ; Para 7 of Lilly George v. Francis James 2008 (3) KLT 27 = AIR 2008 Ker. 195 – J. B. Koshy, P. N. Ravindran – JJ; Paras 53 and 54 of Kurian @ Jacob (Supra – 2017 (5) KHC 257).

Q.57 Should a Mohammedan or an Indian Christian who dies after having executed a will, obtain a Probate or Letters of Administration for establishing any right under the Will in a Court of Justice ?

Ans. If a person who is either a Mohammedan or an Indian Christian dies after having executed a Will, then by virtue of the exclusion under Section 213 (2) of the Act, no Probate or Letters of Administration is to be obtained for establishing any right under the Will in a Court of justice.

Q.58 When were Indian Christians excluded from the operation of Section 213 (1) of the Indian Succession Act, 1925 ?

Ans. In the case of Indian Christians in Kerala, the above mandate under Section 213 (1) of the Indian Succession Act to have the Will probated etc. was considered to be causing untold difficulties. Therefore, a Kerala Amendment to the Indian Succession Act as the INDIAN SUCCESSION (KERALA AMENDMENT) ACT, 1996 was enacted in its application to the State of Kerala by inserting the word “Indian Christians” also in Section 213 (2) along with Muhammadans so as to dispense with the necessity of complying with the mandate of Section 213 (1) Cr.P.C with effect from 14.03.1997. (Vide Syndicate Bank v. Soji Chacko 1998 (2) KLT 25 = ILR 1998 (3) Ker. 538 = 1998 KHC 313 – P. K. Balasubramanian - J; Lilly George v. Francina James 2008 (3) KLT 27 = AIR 2008 Kerala 195 = 2008 (2) KHC 926 (DB) – J. B. Koshy, P. N. Ravindran – JJ. In Soji Chacko it was observed that the amendment was only prospective and applicable only to those who invoke the jurisdiction subsequent to the amendment. Even though, after the  above amendment there was no need in Kerala for an Indian Christian who is an executor or a legatee to obtain a Probate or Letters of Administration, there is no bar for Mohammedans or Indian Christians from getting a Will probated. (Vide Thressiamma v. Joseph 1998 (1) KLT 426 = AIR 1998 Kerala 160 – P. Shanmugam - J).

Subsequently, the Parliament also fell in line with the State Legislature of Kerala by bringing the INDIAN SUCCESSION (AMENDMENT) ACT, 2002 with effect from 27.05.2002 exempting Indian Christians throughout the country also from the necessity of applying for Probate or Letters of Administration. (Vide Cherichi v. Ittianam (2001) 1 KLT 415 = AIR 2001 Kerala 184 = 2001 KHC 116 (DB) - K. S. Radhakrishnan, G. Sasidharan – JJ.

Q.59 What is the position in the case of Hindus, Buddhists, Sikhs or Jains ?

Ans. Even in the case of Hindus, Buddhists, Sikhs or Jainas falling under Section 57 (c) and, therefore, not falling under Section 57 (a) or (b) of the Act, it may not be necessary to seek a Probate or Letters of Administration in view of the exclusion under Section 213 (2) of the Act. Hence, it is not necessary to obtain Probate or Letters of Administration in respect of a Will in the national capital territory of Delhi. (Vide Kanta Yadav v. Om Prakash Yadav AIR 2019 SC 5556 = 2019 KHC 6708 (SC) - L. Nageswara Rao, Hemant Gupta - JJ.)

Q.60 Does the exemption from the mandate of Section 213 (1) of the Indian Succession Act available to a Muslim or an Indian Christian, applicable in all situations ?

Ans. No. Even though a Muslim and an Indian Christian are exempted from the mandate of Section 213 (1) of the Act, the said exemption will be available to them only in the matter of establishing the right of the executor or the legatee in a Court of justice and not in any other Institution including banks. Similarly, a Mahommedan or Indian Christian does not enjoy any exemption from the applicability of Section 214 of the Act as per which a Court is not entitled to pass a decree or proceed with an execution petition against the debtor of a deceased person except upon proof of the representative title referred to in the said Section. A Bank or other Institution if and when approached, will, therefore, be justified in insisting on a Probate or Letters of Administration especially when there are, ostensibly, other legal heirs of the deceased person.