An Exposition of Section 213 of the Indian Succession Act, 1925: Mandate, Scope, and Judicial Interpretation

An Exposition of Section 213 of the Indian Succession Act, 1925: Mandate, Scope, and Judicial Interpretation

Introduction

Section 213 of the Indian Succession Act, 1925 (hereinafter "the Act") stands as a pivotal provision governing the establishment of rights by an executor or legatee under a will in a court of justice in India. It essentially mandates the necessity of obtaining probate of the will or letters of administration with the will annexed from a court of competent jurisdiction before such rights can be judicially recognized. This procedural requirement, however, is not universal in its application, its ambit being circumscribed by the testator's religious affiliation, the situs of the property, and the place of execution of the will, primarily through its interplay with Section 57 of the Act. This article endeavors to provide a comprehensive analysis of Section 213, delving into its statutory framework, the extensive body of judicial pronouncements that have shaped its interpretation, its constitutional validity, and its practical implications in the realm of testamentary succession in India.

The Statutory Framework: Section 213 and Section 57 of the Indian Succession Act, 1925

Section 213(1) of the Act lays down the general rule:

"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."
However, Section 213(2) carves out crucial exceptions and qualifications. It states that this section shall not apply in the case of wills made by Muhammadans. More significantly, it provides that the section 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, 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.

Section 57 of the Act is thus intrinsically linked to Section 213. It specifies the applicability of certain provisions of Part VI of the Act (which includes provisions relating to the execution of wills and probate) to wills and codicils made by Hindus, Buddhists, Sikhs, or Jainas. Clauses (a) and (b) of Section 57 are paramount:

  • Clause (a) applies these provisions to all wills and codicils made by such persons on or after September 1, 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.
  • Clause (b) applies these provisions to all such wills and codicils made outside those territories and limits, so far as relates to immovable property situated within those territories or limits.
Clause (c) of Section 57 extends these provisions to all other wills and codicils made by any Hindu, Buddhist, Sikh, or Jaina on or after January 1, 1927, but this is subject to the crucial proviso that "nothing herein contained shall authorise a testator to bequeath property which he could not have alienated inter vivos, or to deprive any persons of any right of maintenance of which, but for this section, he could not deprive them by will." Crucially, Section 213(2)(i) only refers to clauses (a) and (b) of Section 57, thereby limiting the mandatory probate requirement for Hindus, Buddhists, Sikhs, and Jainas to these specific territorial and property-related conditions.

The historical context, as noted in Jogendranath Banerjee v. Makhan Lal Banerjee[1], shows that Section 213(1) of the 1925 Act is a reproduction of Section 187 of the Indian Succession Act, 1865, which was extended to Hindus to a limited extent by the Hindu Wills Act, 1870.

Judicial Interpretation of Section 213

The judiciary has played a significant role in elucidating the scope, nature, and implications of Section 213.

Nature of Section 213: Procedural or Substantive?

A consistent line of judicial thought considers Section 213 to be primarily procedural rather than substantive. The Rajasthan High Court in Sheonath Singh v. Madanlal[2] opined that Section 213 "does not vest any right or rather any substantive right in any body. What is really does is to regulate the mode of proving a will, that is, procedure." This view was echoed by the Kerala High Court in Syndicate Bank v. Soji Chacko[3], which observed that the section "lays down a rule of procedure... that a person seeking to establish his right in any court of justice as executor or legatee under a will must have obtained the probate... but does not affect the right as such." Similarly, in Geevarghese Geevarghese And Another v. Issahak George And Others[4], Justice V.R. Krishna Iyer (as he then was) held that Section 213(1) is "processual and not substantive and, therefore, applies to wills of anterior dates which are sought to be proved on a posterior date." This procedural nature means that probate can, in some circumstances, be obtained even after the institution of a suit, as suggested in Sheonath Singh[2].

Mandatory Nature and Scope of Bar

Where applicable, Section 213 imposes a stringent bar. The Supreme Court in Mrs. Hem Nolini Judah (Since Deceased) And After Her Her Legal Representative Mrs. Marlean Wilkinson v. Mrs. Isolyne Sarojbashini Bose And Others[5] emphasized that Section 213(1) serves as a barrier against any claims based on wills that have not undergone the requisite probate or letters of administration. The Court clarified that this provision applies universally to all claimants, whether plaintiff or defendant, seeking to establish a right as executor or legatee. This principle was earlier established by the Full Bench of the Madras High Court in Ganshamdoss Narayandoss v. Gulab Bi Bai[6], which was referenced in Mrs. Hem Nolini Judah[5] and also in Kesar Singh And Others v. Shrimati Tej Kaur[7]. The latter case highlighted that a legatee must obtain probate before a succession certificate under Section 370 of the Act could be granted.

The bar is to the "establishment" of the right in a Court of Justice. As observed in Syndicate Bank v. Soji Chacko[3], "where such a right may not come up for being established in a court of law the want of a probate need not and would not affect the right of a legatee under the will."

Applicability to Different Communities and Territorial Scope

The applicability of Section 213 is critically dependent on the testator's community and the territorial conditions outlined in Section 57(a) and (b).

Christians: The Supreme Court in Clarence Pais And Others v. Union Of India[8] dealt extensively with the application of Section 213 to Indian Christians. The Court upheld the constitutional validity of the section, ruling that it is not discriminatory against Christians. It clarified that the provision is not exclusively applicable to Christians but also pertains to other communities like Hindus, Buddhists, Sikhs, and Jainas under the specific conditions of Section 57(a) and (b). The Court emphasized that the requirements are procedural, historically rooted, and serve to establish the genuineness of a will.[8]

Hindus, Buddhists, Sikhs, and Jainas: For these communities, Section 213(1) is applicable only if the will falls within the classes specified in Section 57(a) or (b) – i.e., wills executed within the former presidencies of Bengal, Madras, or Bombay, or wills executed outside these territories but relating to immovable property situated within them. Consequently, for wills made by persons from these communities outside these specified territories and not relating to immovable property within them, probate is not mandatory to establish rights in court.

This territorial limitation has been affirmed in several High Court judgments. The Supreme Court in KANTA YADAV v. OM PRAKASH YADAV[9] confirmed that Section 213 does not apply to wills made in Delhi concerning immovable property also situated in Delhi, as Delhi does not fall under the jurisdictions specified in Section 57(a) and (b). The Court relied on earlier High Court decisions like Ram Chand v. Sardara Singh and M/s. Behari Lal Ram Charan v. Karam Chand Sahni.[9] Similarly, the Allahabad High Court in Bhaiya Ji v. Jageshwar Dayal Bajpai[10] held that Section 213 read with Section 57 did not apply to a Hindu living in Uttar Pradesh (unless the conditions of Section 57(a) or (b) were met). The Rajasthan High Court in Mst. Jadav v. Ram Swarup[11] also noted the non-applicability where the conditions of Section 213(1) read with Section 57 were not fulfilled.

Muslims: Section 213(2) explicitly exempts wills made by Muhammadans from its purview. This means that an executor or legatee under a will executed by a Muslim testator can establish their rights in court without obtaining probate. This exemption is also reflected in the discussions in cases like Bilquis Zakiuddin Bandookwala v. Shehnaz Shabbir Bandukwala[12], which notes that Section 57 also excludes Mohammedans from certain probate requirements.

Probate and Establishment of Rights

The grant of probate authenticates the will and establishes the legal character of the executor. However, it is crucial to distinguish the probate court's function from that of a civil court adjudicating title disputes. The Supreme Court in Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon And Others[13] clarified that the grant of probate does not conclusively determine the title of the properties. Questions regarding whether properties are joint family assets or individually owned must be adjudicated by civil courts based on evidence, irrespective of probate. The probate court's jurisdiction is confined to verifying the authenticity of the will and the testator's capacity (Chiranjilal Shrilal Goenka v. Jasjit Singh, cited in Kanwarjit Singh Dhillon[13]). This was also reiterated in Krishna Kumar Birla v. Rajendra Singh Lodha And Others[14], which emphasized the limited jurisdiction of probate courts concerning title issues.

Foreign Wills and Ancillary Probate

The Madras High Court in Blackwood And Sons Ltd. v. A.N. Parasuraman[15] considered the applicability of Section 213 to foreign wills. It observed that Section 213 would not apply where a person is disabled by law from obtaining probate from any court in India. If a foreign probate has been granted by a competent foreign court, it could be sufficient proof of title and admissible under Section 41 of the Evidence Act. The court also referred to Section 228 of the Indian Succession Act, which enables the granting of ancillary probate in India for wills already proved and deposited in a competent court in a foreign country.

Constitutional Validity and Uniformity

The constitutional validity of Section 213 was challenged in Clarence Pais[8] on grounds of discrimination against Indian Christians. The Supreme Court dismissed the challenge, holding that the provision was not unconstitutional as it applied to other communities as well under specific conditions, and the distinctions were based on historical and regional factors, which were permissible.[8]

The case of Mary Roy And Others v. State Of Kerala And Others[16], while not directly on Section 213, dealt with the repeal of the Travancore Christian Succession Act, 1092, by the extension of the Indian Succession Act, 1925, to Part B States. This judgment reinforced the move towards uniformity in succession laws, indirectly aligning with the broader objective of the Indian Succession Act.

However, concerns about territorial discrimination persist. In Smt. Roopa Bai v. Hukam Singh[17], the Rajasthan High Court noted a potential conflict and suggested that a larger bench examine the validity of Section 213(2) read with Section 57(a) and (b) under Article 14 of the Constitution due to territorial discrimination.

Detailed Discussion of Key Reference Materials

Clarence Pais And Others v. Union Of India (2001)[8]

This landmark Supreme Court judgment is central to understanding the application and constitutionality of Section 213, particularly concerning Indian Christians. The petitioners argued that the requirement of probate under Section 213 was discriminatory against Christians. The Court meticulously analyzed Sections 57 and 213, concluding that Section 213 is not exclusively applicable to Christians. It pointed out that the mandate for probate also extends to Hindus, Buddhists, Sikhs, and Jainas if their wills fall under the conditions specified in Section 57(a) and (b) of the Act. The Court emphasized the procedural nature of Section 213, stating its purpose is to ensure the genuineness of a will. The historical context, where probate was primarily required in certain regions during the British era and this practice continued post-independence, was deemed a constitutionally permissible regional differentiation. The judgment thus affirmed that procedural distinctions rooted in historical and geographical considerations do not necessarily amount to unconstitutional discrimination.

Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Bose (1962)[5]

This Supreme Court decision underscores the mandatory nature of Section 213 where it applies. The dispute involved conflicting wills, and the High Court had reversed a trial court decision, emphasizing the necessity of obtaining probate or letters of administration as mandated by Section 213. The Supreme Court upheld the High Court's view. It explicitly stated that Section 213(1) "indiscriminately bars any claim of rights under a will unless probate or letters of administration are duly obtained," quoting Ganshamdoss Narayandoss v. Gulab Bi Bai[6]. The Court made it clear that since the will in question had neither been probated nor accompanied by letters of administration, any claim derived from it was invalid. This case firmly establishes that Section 213 is a stringent requirement for establishing rights as an executor or legatee in court, applicable irrespective of whether the claimant is a plaintiff or a defendant.

KANTA YADAV v. OM PRAKASH YADAV (2019)[9]

This Supreme Court judgment provides crucial clarification on the territorial application of Section 213, particularly concerning wills executed in Delhi. The core issue was whether probate was mandatory for wills in Delhi. The Court, interpreting Sections 213 and 57, affirmed that Section 213(1)'s mandate for probate for wills made by Hindus, Buddhists, Sikhs, or Jainas is restricted by Section 213(2)(i) to wills covered by Section 57(a) and (b). Since Delhi (and areas like Punjab and Uttar Pradesh, unless immovable property is in the original presidencies) does not fall within the territorial jurisdictions specified in Section 57(a) and (b), the requirement of probate under Section 213 is not applicable for wills made by persons of these communities in such areas, provided the will does not relate to immovable property within the specified old presidency towns. This decision reinforces that the rigor of Section 213 is geographically limited for these communities.

Exceptions and Nuances

While Section 213 imposes a clear bar, certain nuances exist:

  • Defendant setting up an unprobated will: Early Madras High Court decisions like Caralapathi Chunna Cunniah v. Cota Nammalwariah (cited in John Guruprakasam v. Yovel Nesan And Others[18]) suggested a defendant could use an unprobated will defensively. However, John Guruprakasam[18] itself notes that this view is "no longer law in view of the Full Bench decision in Ganshamdoss Narayandoss v. Gulab Bi Bai[6]," which held the bar applies to both plaintiff and defendant.
  • Rights not "established in any Court of Justice": As per Syndicate Bank v. Soji Chacko[3], if the right under the will is not being established in a court, the lack of probate might not affect the legatee's right as such. This could apply to out-of-court settlements or actions.
  • Mutation Proceedings: The applicability to mutation proceedings has been debated. In Shiam Singh v. Smt. Ghoghari[19], the Board of Revenue, U.P., considered whether Section 213 bars mutation based on an unprobated will by a Hindu, highlighting the need for clarity on this issue.
  • Optional Probate: Even where probate is not mandatory under Section 213 (e.g., for a will by a Hindu in Uttar Pradesh not covered by Section 57(a) or (b)), a beneficiary is not barred from applying for probate if they wish to do so for other purposes, as noted by the Allahabad High Court in Smt. Satnam Kaur v. Satyedra Pal Singh And Ors.[20].

Conclusion

Section 213 of the Indian Succession Act, 1925, serves as a critical procedural gateway for the establishment of rights under a will in Indian courts. Its application, meticulously defined by its interplay with Section 57 and judicial interpretations, is contingent upon the testator's religion and specific territorial considerations. The Supreme Court has affirmed its constitutionality and clarified its non-discriminatory nature, emphasizing its role in ensuring the authenticity of testamentary dispositions. While the mandate for probate is stringent where applicable, the courts have also recognized its procedural character and its limitations, particularly distinguishing it from the adjudication of title. The ongoing evolution of jurisprudence, especially concerning territorial applicability and potential constitutional nuances related to uniformity, indicates that Section 213 will continue to be a subject of significant legal discourse in the Indian succession law landscape. Understanding its provisions and the rich tapestry of case law surrounding it is indispensable for legal practitioners and individuals navigating the complexities of testamentary succession in India.

References