Ancillary Administration in India: A Juridical Analysis of Section 228 of the Indian Succession Act, 1925

Ancillary Administration in India: A Juridical Analysis of Section 228 of the Indian Succession Act, 1925

Introduction

The Indian Succession Act, 1925 stands as a comprehensive legislative framework enacted to consolidate the law applicable to intestate and testamentary succession in India (Rupali Mehta v. Tina Narinder Sain Mehta, 2006). Within this framework, Part IX of the Act meticulously governs the grant of probate, letters of administration, and the administration of a deceased's assets. A probate, granted by a court of competent jurisdiction, serves as a conclusive judicial declaration of the validity of a will and establishes the legal character of the executor. However, in an increasingly globalized world, a significant legal question arises when a will, which disposes of property situated in India, has already been executed and judicially validated (proved) in a foreign jurisdiction. Addressing this exigency is Section 228 of the Act, a provision that establishes the mechanism for ancillary administration.

This article provides a scholarly analysis of Section 228 of the Indian Succession Act, 1925. It examines the statutory language, key judicial interpretations, and procedural nuances associated with the grant of what is commonly referred to as "ancillary probate" or letters of administration with a foreign will annexed. By integrating principles from seminal case law, this analysis will demonstrate that Section 228 provides a robust legal bridge, giving domestic effect to foreign probate grants and ensuring a seamless, cross-border administration of estates without necessitating a de novo trial on the will's validity.

The Statutory Framework of Section 228

Section 228, situated in Chapter I of Part IX of the Act, provides the legal basis for recognizing a will already proved abroad. The section states:

228. Administration of authenticated copy of will proved abroad.—When a will has been proved and deposited in a Court of competent jurisdiction situated beyond the limits of the State, whether within or beyond the limits of India, and a properly authenticated copy of the will is produced, letters of administration may be granted to any person to whom administration with the will annexed might be granted under this Act.

A deconstruction of this provision reveals its core components:

  • Prerequisite of Foreign Probate: The section is triggered only "when a will has been proved and deposited in a Court of competent jurisdiction" outside the state where the application is made. This establishes that a valid judicial determination on the will's authenticity by a foreign court is a sine qua non.
  • Evidentiary Standard: The primary evidence required is not the original will or the testimony of attesting witnesses, but "a properly authenticated copy of the will." This significantly simplifies the evidentiary burden compared to a primary probate proceeding.
  • Relief Granted: The relief is the grant of "letters of administration," which may be with the will annexed. This grant confers upon the administrator the legal authority to deal with the deceased's assets located within the jurisdiction of the Indian court.

The procedure for obtaining such a grant is initiated through a petition, often filed under Section 276 read with Section 228 of the Act (Vijay Lakshmi Marwah & Anr. v. State, 2014). The distinction between this proceeding and a primary probate petition is fundamental. A primary petition requires rigorous proof of the will's execution and the testator's capacity, as detailed in cases like Ishwardeo Narain Singh v. Srimati Kamta Devi (1954) and K.M Varghese v. K.M Oommen (1993). In contrast, a Section 228 proceeding operates on the principle of comity, accepting the foreign court's judgment as sufficient proof of the will's validity.

Judicial Interpretation and Key Principles

The Doctrine of Ancillary Administration

The Indian judiciary has consistently interpreted Section 228 as the statutory embodiment of the doctrine of ancillary administration. The Madras High Court in Blackwood And Sons Ltd. v. A.N. Parasuraman (1958) clarified that Section 228 is an "extension of the rule" that enables the granting of an "ancillary probate" for foreign wills. The court reasoned that it would be illogical for Indian law (specifically Section 213, which mandates probate for establishing rights under a will) to insist on a probate that no Indian court could grant in the first instance. Therefore, Section 228 provides the necessary alternate pathway.

The mandatory nature of this provision was affirmed by the Delhi High Court in Minu Chibber & Ors. v. Lt. Col. (Retd.) S.S. Chibber (2014). The court held that for a foreign probate to be of any advantage in India, the procedure under Section 228 must be complied with. Merely possessing a foreign probate is insufficient; one must obtain ancillary letters of administration in India to legally administer the Indian assets of the deceased. This principle was also echoed in SAVARIMUTHU v. D.GANDHIMATHI (2025), where it was argued that for a will probated in Indonesia, letters of administration ought to have been obtained in India under Section 228.

Nature of Proof: Authenticated Copy v. Re-Proving the Will

A cornerstone of the jurisprudence surrounding Section 228 is that it obviates the need to re-prove the will in India. The focus of the Indian court is not on the testamentary capacity of the testator or the due execution of the will, but on the authenticity of the foreign judicial record. The Madras High Court, in the recent and authoritative judgment of M.Aruna Bharathi v. M.Manickama (2024), decisively held that the "proof of Will required under Section 228 of the Indian Succession Act, 1925, is quite different from the proof of Will, when it is to be proved under Section 276."

In that case, the trial court had erroneously dismissed a petition for ancillary probate by insisting on the standard of proof applicable to a primary grant. The High Court reversed this, clarifying that once a will has been proved and deposited in a competent foreign court, an Indian court should grant ancillary letters of administration based on an authenticated copy of the will and the foreign grant. This approach is exemplified in practice in cases like PRIYA DUGGAL LALL v. STATE & ANR. (2019), where the Delhi High Court granted letters of administration for Indian properties based on a will already probated in New Jersey, USA.

Conclusiveness and Effect of the Grant

Once letters of administration are granted under Section 228, they have the same legal force and effect concerning the Indian estate as a primary grant. The grant is considered a judgment *in rem*, which is binding on the entire world. The Madras High Court in Alagammal And Others v. Rakkammal (1982), and later reiterated in M.Aruna Bharathi (2024), affirmed that a foreign probate supplemented by an ancillary grant under Section 228 is a judgment *in rem*. This means the grant conclusively establishes the representative title of the administrator and the validity of the will with respect to the property situated in India, as envisaged under Section 273 of the Act.

Procedural Aspects and Practical Application

The Petition and Parties

A petition for ancillary administration is typically filed by the executor named in the will. However, the law does not compel a foreign-based executor to travel to India for this purpose. Citing its earlier decision in Re-Wilfrid Hazell Sell (1940), the Madras High Court in M.Aruna Bharathi (2024) observed that it was not the legislature's intent to compel an executor residing abroad to come to India. The petition can be validly pursued through a duly appointed Power of Attorney holder, a practice seen in both PRIYA DUGGAL LALL (2019) and M.Aruna Bharathi (2024).

The proceedings follow the general course of a testamentary case, which may take the form of a regular suit if contested (Section 295). As seen in Vijay Lakshmi Marwah (2014), where objectors were present but later withdrew their objections, the court can proceed to grant the letters of administration upon satisfaction that there is no legal impediment.

Jurisdiction and Limitation

The territorial jurisdiction of the Indian court to entertain a petition under Section 228 is determined by Section 270 of the Act. The petition can be filed before a District Judge within whose jurisdiction the deceased had a "fixed place of abode, or any property, movable or immovable" at the time of death (Smt. Kanta v. State And Another, 1985). In ancillary administration cases, jurisdiction is almost always founded on the existence of property within the court's limits.

A more complex issue is that of limitation. In BOMPANAPALLI NAGA SUSEELA v. SALADI TATARAO (2023), the Andhra Pradesh High Court noted arguments referencing the Supreme Court's decision in Sameer Kapoor v. State (2020). This precedent suggests that Article 137 of the Limitation Act, 1963, which prescribes a residuary limitation period of three years from the date the "right to apply accrues," is applicable to petitions for letters of administration, including those under Section 228. This introduces a critical temporal constraint that petitioners must heed.

Conclusion

Section 228 of the Indian Succession Act, 1925, is a pivotal provision that harmonizes the administration of estates in a cross-border context. It is founded on the principles of judicial comity and procedural efficiency, allowing Indian courts to recognize and give effect to the testamentary grants of competent foreign courts without undertaking a redundant re-litigation of the will's validity. Judicial pronouncements have consistently reinforced its framework, clarifying that its purpose is to facilitate, not obstruct, the administration of Indian assets forming part of a global estate.

The judiciary has clearly delineated the scope of inquiry in a Section 228 proceeding, limiting it to the authenticity of the foreign grant rather than the merits of the will itself. By allowing petitions through attorneys and establishing the grant's status as a judgment *in rem*, the courts have crafted a practical and legally sound mechanism. Section 228 thus remains an indispensable tool in private international law, ensuring that the testamentary intentions of individuals are respected across jurisdictions and that the rights of legatees and heirs to property in India are effectively secured.