Is It Mandatory To Seek Probate Or Letters Of Administration For Establishing A Right As Executor Or Legatee Under A Will? Supreme Court Explains

The Supreme Court observed that the mandatory requirement to seek probate or letters of administration for establishing a right as executor or legatee under a Will, is applicable only to Wills made by a Hindu, Buddhist, Sikh or Jaina within the local limits of the ordinary original civil jurisdiction of certain High Courts and to Wills made outside those territories, to the extent they cover immovable property situate within those territories.

There is no prohibition for a person whose case falls outside the purview of these provisions, from producing, relying upon and claiming a right under a Will, in any proceeding instituted by others including the other legal heirs for partition or other reliefs, Justice V. Ramasubramanian observed.

This issue was considered by the court while disposing two transfer petitions.  The court noted that, in Balbir Singh Wasu vs. Lakhbir Singh, the court did not notice the difference between cases where a party is entitled to rely upon a Will in a judicial proceeding even without getting probate/letters of administration and cases where there is a bar for the production of a Will in a judicial proceeding without first getting probate/letters of administration. Referring to various provisions of Indian Succession Act, the court observed:

A cumulative reading of Sections 57, 213 and 264 would show: (i) that a person claiming to be an executor or legatee under a Will cannot rely upon the Will, in any proceeding before a Court of justice, unless he has obtained probate (if an executor has been appointed) or letters of administration with the Will annexed, if such a Will has been executed by certain classes of persons; and (ii) that the jurisdiction to grant probate or letters of administration 22 vests only in courts located within the towns of Calcutta, Madras or Bombay and the Courts in any local area notified by the State Government in the Official Gazette. 36. Therefore, what follows is that: (i) unless the testator belongs to any of the classes of persons specified in the Act; and (ii) unless the Will is made or some of the properties covered by the Will are located, within the local limits of a notified area, there is no necessity for an executor or a legatee under a Will to seek probate or letters of administration.

Holding thus, the bench proceeded to examine the question whether whether the partition suit pending on the file of the District Court at Saket, New Delhi from the year 2016 (instituted in 2012), should be transferred to the District Court, Nainital, Uttarakhand or whether the testamentary case pending on the file of the High Court of Uttarakhand from 2019, should be transferred to the District Court, Saket, so that it could be tried along with the partition suit already pending there?

Disposing the transfer pleas, the court directed that the partition suit  pending on the file of the Additional District Court, Saket at Delhi shall stand transferred to the High Court of Delhi and clubbed along with the testamentary proceeding.

CASE: RAVINDER NATH AGARWAL  vs. YOGENDER NATH AGARWAL [TRANSFER PETITION (CIVIL) No.970 OF 2016]
CORAM: Justice V. Ramasubramanian 
COUNSEL: Sr. Adv Gopal Sankaranarayanan, Adv Manish Kumar, Adv Nitya Ramakrishnan, Adv H.S. Sharma,
CITATION: LL 2021 SC 85

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