If interpreted rightly, the law provides that obtaining probate or letter of administration is not mandatory inorder to execute the contents of a will. The relevant provisions are Ss. 57 and 213 of the Indian Succession Act, 1925 (hereinafter “Act”).
Section 57 of the Act reads,
“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 immoveable property situate within those territories or limits, 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.”
Section 213 (2) of the Act reads,
“(2) This section shall not apply in the case of Wills made by Muhammadans, 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 [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 situated within those limits.” (Emphasis supplied)
To know more about how and why obtaining probate/ letter of administration is not mandatory, read a detailed article which is part of the March 2024 Edition of the Lawyers’ Society Digital Law Magazine, where this issue is covered along with relevant citations from the Hon’ble Supreme Court and also several High Courts across India. The magazine is priced at just Rs. 50/-.
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