Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
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According to section 2(f)1 of the Indian Succession Act, 1925 Probate refers to a copy of the will that is certified by the seal of a court of competent jurisdiction. Through Probate, rights pertaining administration of an estate is granted to the applicant (who is an executor under the will). It is a judicial process through which the validity and authenticity of a will is determined in a court of law. In this process, the executor of the will, beneficiaries, and value of the estate are determined. Probate helps the executor to receive a certification from the court that he is duly authorized to administer the estate of the testator under the will. Even a beneficiary can be appointed as an executor under the will.
To whom Probate cannot be granted
According to section 2232 of the Indian Succession Act, 1925, Probate cannot be granted to any person who is a minor or is of unsound mind. Neither it can be granted to an association of individuals unless it is a company which satisfies the conditions prescribed by rules to be made by notification in the Official Gazette by the State Government in this behalf.
Letter of Administration
The critical difference between Probate and Letter of Administration is that Probate is granted to an executor nominated under the will. Whereas, if a will does not nominate an executor, the beneficiaries of the deceased will have to file an application for Letter of Administration. This Letter of Administration would grant the same administrative rights to the beneficiaries that an executor would have enjoyed. However, If a person dies intestate, then an applicant seeking administrative rights pertaining to the deceased estate files for Letter of Administration.
Hence, when a person dies intestate/ or doesn't nominate an executor under the will, it is then, the Letter of Administration acts as a facilitating document. Letter of Administration is granted to the beneficiaries after they apply to a Court of law having competent jurisdiction. Letter of Administration entitles the administrator to all rights belonging to the intestate as effectually as if the administration had been granted at the moment after his death3.
According to section 2344 of the Act, if the executor, residuary legatee or representative of the residuary legatee doesn't exist, declines, is incapable of acting or cannot be found, then the person who would have been entitled to administer the estate in case of the deceased dying intestate would be entitled to file an application for the Letter of Administration. The same provision under the act empowers any other legatee having a beneficial interest or a creditor to file an application for the Letter of Administration as the case may be.
To whom Letter of Administration cannot be granted
Letters of administration cannot be granted to any person who is a minor or is of unsound mind, nor to any association of individuals unless it is a company which satisfies the conditions prescribed by rules to be made by notification in the Official Gazette by the State Government in this behalf5.
Is it mandatory to obtain Probate /Letter of Administration?
Section 213(1) makes it mandatory for every legatee or executer to obtain a Probate of the will or Letter of Administration with the will before they try to execute a will. Otherwise, an executor or legatee cannot establish any right in a court of law pertaining to the concerned will and any estate mentioned therein.
In simple words, an executor or the legatee can only perform their testamentary operation and their respective roles disposition of the deceased estate, when they duly obtain a Probate/Letter of Administration from a court of competent jurisdiction.
Exception to the mandate under section 213(1)
Section 213(2) read with section 57 of the Indian Succession Act, 1925 clearly carves out certain exceptions to the mandate under section 213(1) of the Act. For a better understanding, both sections are extracted below:
57. Application of certain provisions of Part to a class of wills made by Hindus, etc.--The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply—
(a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and
(b) to all such wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits, 2[and
(c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January 1927, to which those provisions are not applied by clauses (a) and (b):]
Provided that marriage shall not revoke any such will or codicil.
213. Right as executor or legatee when established.
(1) No right as executor or legatee can be established in any Court of Justice unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.
(2) This section shall not apply in the case of wills made by Muhammadans 3[or Indian Christians], and shall only apply--
(i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the classes specified in clauses (a) and (b) of section 57; and
(ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such wills are made within the local limits of the 4[ordinary-original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits.]
A bare reading of Sections 213(2) and 57 of the Act makes it clear that whatever exception contained in Sub-section (1) of Section 213 has no application in respect of wills made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay. Also, in respect of those wills that are made outside the territories mentioned above but deals with immovable property situated within such territories.
Some of the cases which dealt with these issues in detail are mentioned below:
- Clarence Pais & Ors vs Union Of India6 (SUPREME COURT OF INDIA)
- Kanta Yadav VS Om Prakash Yadav and Others 7 (SUPREME COURT OF INDIA)
- Joginder Pal PAL vs Indian Red Cross Society & ORS.8 (SUPREME COURT OF INDIA)
- Gangavath Lalu vs. Gangavathi Tulsi9 (High Court of Andhra Pradesh at Hyderabad)
- Bhagwanji Karsanbhai Rathod vs Surajmal Anandraj Mehta10( High Court of Bombay)
- Hans Raj and Anr vs Jeet Kaur (Deceased)11 (High Court Of Delhi)
Succession certificate is a sanctioning document that sanctions the right to inherit debt and securities to the legal heirs of the deceased who died intestate. This right to inherit is sanctioned when the beneficiaries apply to a civil court of competent jurisdiction. In other words, a succession certificate gives legal recognition to the right of legal heirs to inherit the estate of the deceased. According to section 37012 of the Act, it is pretty clear that Succession Certificate can not be granted pertaining to any debt or security to which the rights are required to be established by Probate13 or Letter of Administration14.
Succession Certificate is not required in case of compensation sanctioned for an employee's death in the course of his duty15.The Ho'nble Supreme Court has discussed the status conferred upon the grantee of a Succession Certificate in Banarsi Dass Versus Teeku Dutta (Mrs) and Another16.
The court said that "The main object of a Succession Certificate is to facilitate collection of debts on succession and afford protection to parties paying debts to representatives of deceased persons. All that the Succession Certificate purports to do is to facilitate the collection of debts, to regulate the administration of succession and to protect persons who deal with the alleged representatives of the deceased persons. Such a certificate does not give any general power of administration on the estate of the deceased. The grant of a certificate does not establish title of the grantee as the heir of the deceased. A Succession Certificate is intended as noted above to protect the debtors, which means that where a debtor of a deceased person either voluntarily pays his debt to a person holding a Certificate under the Act, or is compelled by the decree of a Court to pay it to the person, he is lawfully discharged. The grant of a certificate does not establish a title of the grantee as the heir of the deceased, but only furnishes him with authority to collect his debts and allows the debtors to make payments to him without incurring any risk".
After reading the deceision of our Hon'ble Supreme Court it can be easily construed that a Succession Certificate is helpful while dealing with movable assets like provident fund, bank deposits, shares, loans and etc. but not a strong proof for establishing administrative rights pertaining to an immovable property of the deceased in a court of law. Instruments like Letter of Administration should also be supplemented for grant of administrative rights pertaining to an immovable property.
Insurance Policy and Succession Certificate
The amount due to the policy holder is payable to the heirs or legal representatives or the holder of a succession certificate" as the case may be. If there is no dispute as to who is actually authorized to receive the policy amount?, between the legal heirs and the legal representatives, then submission of a Succession Certificate is not necessary17.
Probate, Letter of Administration and Succession Certificate are legal documents through which rights pertaining to the estate of the deceased are granted. Probate and Letter of Administration are the primary documents through which administrative rights pertaining to the estate of the deceased are validated. The role of Succession Certificate is very limited in comparison with the other two documents. Succession Certificate can be used for acquiring debts and securities but rights pertaining to immovable property and assets that are of significant worth requires grant of Probate or Letters of Administration.
6. https://main.sci.gov.in/jonew/judis/17619.pdf (SUPREME COURT OF INDIA)
7. https://main.sci.gov.in/supremecourt/2017/19755/19755_2017_13_1504_15302_Judgement_24-Jul-2019.pdf (SUPREME COURT OF INDIA)
8. https://main.sci.gov.in/jonew/judis/17167.pdf (SUPREME COURT OF INDIA)
9. AIR 2001 AP 326, 2001 (2) ALT 437: MANU/AP/0919/2001: C.R.P. No. 5111/2000 (High Court of Andhra Pradesh at Hyderabad)
10. 2003 SCC OnLine Bom 628 : (2004) 1 Mah LJ 62 : (2003) 5 Bom CR 228 : AIR 2003 Bom 387 : (2004) 106 (2) Bom LR 167 : (2004) 15 AIC 903 (Bom) : (2004) 3 ALT (DNC 29.1) 29 : (2004) 1 CCC 446 : (2004) 1 HLR 637 : (2004) 1 Civ LT 176): MANU/MH/0331/2003: (High Court of Bombay)
11. MANU/DE/4846/2012 2001 SCC OnLine Del 1151 : (2002) 61 DRJ 314 : (2002) 95 DLT 459 : 2002 AIHC 1526 (DELHI HIGH COURT)
15. JT 2000 (4) SC 346, (2000) 9 SCC 240: Rukhsana (Smt) And Ors. vs Nazrunnisa (Smt) And Anr. on 17 January, 2000: (SUPREME COURT OF INDIA)
16. https://main.sci.gov.in/jonew/judis/26973.pdf (SUPREME COURT OF INDIA)
17. 1989 SCC OnLine Bom 275 : 1990 Mah LJ 195 : (1990) 1 Bom CR 237 : AIR 1990 Bom 255 : (1989) 91 Bom LR 544 : 1990 ACJ 949 : (1991) 70 Comp Cas 567: Short Cause Suit No. 1541 of 1977: Decided on November 30, 1989: (High Court of Bombay)
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