As brief background, successions to movable and immoveable properties in India of a deceased person is governed either by way of testamentary succession or non-testamentary succession. Testamentary succession is through testament or Will; and non-testamentary succession is through succession in accordance with the provisions of the applicable succession laws basis the religion of the deceased person.

A “Will” is defined under Section 2 (h) of Indian Succession Act, 1925 (“Act”) as the legal declaration of the intention of a testator (person who has made the Will) with respect to vesting of his properties and assets which he desires to be carried into effect after his/her death. In simpler words, Will is the legal document executed by a testator during his/her lifetime, for devolution of his/ her properties and assets after his death; and such legal document can only be revoked during his/ her lifetime.

Probate and its requirement

There is always confusion whether every Will requires a Probate. Now, first of all, Probate is a process of certifying the contents and authenticity of a Will which can only be granted by a court of competent jurisdiction to an executor appointed by or under the Will. Section 2 (f) of the Act defines ‘Probate’ as the copy of a Will certified under the seal of court of competent jurisdiction with a grant of administration to the estates of Testator. The Act refers to certain circumstances which require the probate of Will as mandatory, which generally depends on the nature of religion of an individual executing the Will and the place of jurisdiction which the Will relates to. Non probation of the Will does not render the Will as invalid. However, to perfect the title, the Will is generally required to be probated[1].

However, the Act provides for certain circumstances within which probate of a Will is mandatory. Such circumstances include (i) if the Will is executed in the cities of Kolkata, Chennai (Madras) or Mumbai, or (ii) the Will relates to any immoveable property situated in the cities of Kolkata, Chennai or Mumbai.

When both these circumstances are not met, then probate of the Will is not mandatory. In simpler words, if a Will is executed in the state of Delhi and does not relate to any property situated within the aforesaid cities of Kolkata, Chennai or Mumbai, then such Will is not mandatorily required to be probated[2].

Court of Competent Jurisdiction

A Probate needs to be obtained from a court of competent jurisdiction. Under section 264 of the Act, a District Judge exercises jurisdiction and like powers, in respect of granting and revoking probates, as he would in any civil suit. High Courts also exercise concurrent jurisdiction in all matters relating to probate. Nevertheless, apart from the High Courts of Kolkata, Chennai, and Mumbai, all other High Courts, in terms of section 300(2), may only receive probate applications if they have been so empowered by an official state gazette notification. High Courts may also appoint judicial officers as District Delegates to handle non-contentious cases of probate.

Therefore, a probate application must be made to a District Judge (or District Delegate as the case may be) in whose territorial jurisdiction, the testator had a fixed place of abode right before his/ her death. However, if the testator had assets located outside the State, whose value is more than certain threshold amounts, the application must be made to the High Court instead.[3]

Probate- How obtained?

A Probate Petition must be filed within the general limitation period of 3 years from the day of the death of the testator, as prescribed by Article 137 of the Limitation Act of 1963.[4] The procedure to procure a probate is explained in following steps-

• Application by the executor appointed by the Will– The first step is the application required to be filed by the executor (after paying applicable court fees basis the value of the assets devolved in the Will) to a District Judge through the probate petition after 7 (seven) days of the death of testator, which petition is filed in accordance with the Code of Civil Procedure, 1908. Section 276 of the Act provides for the contents of the probate petition stating inter-alia-
  – The time of the testator’s death;
  – Copy of last Will of the testator annexed to the Petition;
  – Details of assets which are likely to be devolved and transferred to the petitioner;
  – Details of the fixed adobe of the deceased testator or details of his property.
• Will genuineness and its verification– Under Section 280 of the Act, the petitioner and the witnesses of the Will must verify the contents of the Will and, in terms of Section 281 of the Act, one of the witnesses (when such verification is procurable) must declare that they witnessed the signing of the Will. Along with such declarations, the petitioner to the Will is also required to furnish certain documents to the respective court to evidence the genuineness of the petition, which documents, may include inter-alia death certificate of the deceased testator, surviving member certificate, identity proof evidencing the relationship of the executor with the deceased testator, etc.
• Issuance of probate- Upon receipt of the petition by the appropriate court having the jurisdiction, the court verifies the details; and issues notices to the nearest kins of the deceased testator for claiming the probate, and objections from the general public. If there are no objections received and the kins of the deceased testator have given their consent to such probate, then the probate is granted and completed under the seal of the relevant court.

Conclusion

There are certainly various other aspects connected to successions, HUFs, ancestral properties, family settlement and separation/ divisions of family estates. We shall continue to write on the same, as we have been in the past as well (please refer to our previous articles on some of these subjects). Please do watch this space for more …

Footnotes:
[1] S. Parthasarathy Aiyar v. M. Subbaraya Gramany, AIR 1924 Madras 67; See also Crystal Developers v. Asha Late Ghosh, (2005) 9 SCC 375; Mohamed Salman Noorani v. Radhika Bhargava, 2014 (6) BomCR 379.
[2] Fazalur Rehman v. Gopal Sahu, 2016 (117) ALR 135; Clarence Pais and Ors. v. Union of India, (2001) 4 SCC 325.
[3] Rukmani Devi and Ors.  vs. Narendra Lal Gupta, AIR 1984 SC 1866.
[4] Sameer Kapoor and Ors. vs. The State and Ors., AIR 2019 SC 3318 : (2020) 12 SCC 480; Ramesh Nivrutti Bhagwat vs. Surendra Manohar Parakhe, AIR 2019 SC 4948; Kunvarjeet Singh Khandpur vs Kirandeep Kaur, AIR 2008 SC 2058.