An Exposition on the Non-Necessity of Probate for Certain Wills in Delhi

Introduction

The administration of a deceased person's estate in India is primarily governed by the Indian Succession Act, 1925 ("the Act"). A critical aspect of this process often involves obtaining probate for a will. Probate is the judicial certification of the validity of a will, granting the executor the legal authority to administer the estate. However, the requirement for probate is not uniform across India, nor for all communities. This article delves into the specific legal position concerning the necessity of probate for wills within the National Capital Territory of Delhi, focusing on the widely held understanding that probate is not invariably mandatory. The analysis will navigate through the relevant statutory provisions, principally Sections 213 and 57 of the Act, and a catena of judicial pronouncements that have shaped the current legal landscape in Delhi.

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

The question of whether probate is necessary hinges on the interpretation and interplay of Sections 213 and 57 of the Indian Succession Act, 1925.

Section 213: The General Rule and Its Exceptions

Section 213(1) of the Act lays down the general rule that no right as an 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 annexed. As observed in Sanjay Kalra v. State (Delhi High Court, 2023), "Once the Probate is granted, it establishes the Will from the time of the death of the Testator and renders valid, all action of the executor during the interim period... Probate is conclusive evidence of the testamentary capacity of the Testator and due execution and validity of the Will."

However, Section 213(2) carves out crucial exceptions to this general mandate. Prior to the Indian Succession (Amendment) Act, 2002, Section 213(2) read:

"(2) This section shall not apply in the case of wills made by Muhammadans 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, 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 immoveable property situated within those limits."

(as quoted in Rajan Suri & Anr v. State & Anr, 2005 SCC ONLINE DEL 1290 and KANTA YADAV v. OM PRAKASH YADAV, 2019 SCC ONLINE SC 920, reflecting the pre-2002 amendment text relevant to the wills in those cases).

The Indian Succession (Amendment) Act, 2002, significantly altered Section 213(2) by removing the words "or Indian Christians" from the initial exclusionary part. The impact of this amendment on wills made by Indian Christians will be discussed later. For wills of Hindus, Buddhists, Sikhs, or Jains, the applicability of Section 213(1) is contingent upon Section 57 of the Act.

Section 57: Territorial Application to Certain Wills

Section 57 of the Act specifies the classes of wills made by Hindus, Buddhists, Sikhs, or Jains to which certain provisions of the Act, including those relating to probate, apply. It states:

"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."

The interplay is such that Section 213(1) mandating probate applies to wills of Hindus, Buddhists, Sikhs, or Jains only if they fall within the categories described in Section 57(a) or 57(b). If a will does not fall under these clauses (e.g., a will made in Delhi relating to immovable property in Delhi by a Hindu), the rigor of Section 213(1) is not attracted.

Probate of Wills in Delhi: The General Exemption for Hindus, Buddhists, Sikhs, and Jains

Judicial Interpretation and the Role of Section 57

The consistent judicial view has been that for wills made by Hindus, Buddhists, Sikhs, or Jains in Delhi, or concerning immovable property situated in Delhi (and not falling under the specific territorial jurisdictions mentioned in Section 57(a) and (b)), probate is not mandatory.

This principle was lucidly established by the Punjab High Court (which then had jurisdiction over Delhi) in Behari Lal Ram Charan v. Karam Chand Sahni And Others S (1966 SCC ONLINE P&H 226). The Court held:

"From a bare perusal of these two sections [Sections 213 and 57] it is apparent that the objection ... was without any substance Clause (a) of Section 57 read with Sub-section (2) of Section 213, it would appear applies to those cases where the property and parties are situate in the territories of Bengal Madras and Bombay, while Clause (b) applies to those cases where the parties are not residing in those territories but the property involved is situate within those territories ... therefore, where both the person and property of any Hindu, Budhist, Sikh or Jaina. are outside the territories mentioned above, the rigour of Section 213, Sub-section (1), is not attracted."

The Court concluded, "in a suit instituted in Delhi it is not necessary to obtain probate of a will before any claim could be based on that will." This view has been consistently followed by the Delhi High Court.

In Rajan Suri & Anr v. State & Anr (2005 SCC ONLINE DEL 1290), the Delhi High Court reiterated, "Section 213 would have no applicability in Delhi and it is not necessary to obtain probate of a Will in Delhi before any claim is based on that Will. A person has a right to set up a Will even in collateral proceedings and there is no need of obtaining probate thereof." This was also affirmed in Shri Shivraj Krishan Gupta, Smt. ... v. Shri Shivraj Krishan Gupta, Smt (2007 DRJ 96 466).

The Delhi High Court in Capt. (Retd.) O.P Sharma & Anr. v. Kamla Sharma & Ors. (Delhi High Court, 2008), citing Clarence Pais And Others v. Union Of India (2001 SCC 4 325), observed: "Therefore, as a consequence, a probate Will not be required to be obtained by a Hindu in respect of a Will made outside those territories or regarding the immovable properties situated outside those territories." The Court further noted, "As regards probate of a Will, it is settled law that in Delhi to enforce a Will probate is not required." Similarly, in Kavita Sharma v. State Of Delhi (Delhi High Court, 1995), it was held that "Section 213 is not applicable to Delhi."

Supreme Court's Affirmation in Kanta Yadav

The Supreme Court of India provided a definitive affirmation of this position in KANTA YADAV v. OM PRAKASH YADAV (2019 SCC ONLINE SC 920). The Apex Court, while dealing with a will executed by a Hindu in Delhi concerning properties in Delhi, upheld the view that probate was not necessary. The Court referred to its earlier decision in Clarence Pais And Others v. Union Of India (2001 SCC 4 325), which upheld the constitutionality of Section 213 and clarified its applicability.

The Supreme Court in KANTA YADAV extensively quoted from the Delhi High Court's judgment in Winifred Nora Theophilus v. Lila Deane & Others (2001 SCC ONLINE DEL 644), specifically the part pertaining to wills made by Hindus, Buddhists, Sikhs, or Jains:

"On interpretation of Section 213 read with Section 57 (a) and (b), the Courts have opined that where the will is made by Hindu, Buddhist, Sikh and Jaina and were subject to the Lt. Governor of Bengal or within the local limits of ordinary, original civil jurisdiction of High Courts of Judicature at Madras and Bombay or even made outside but relating to immovable property within the aforesaid territories that embargo contained in Section 213 shall apply. From this it stands concluded that if will is made by Hindu, Buddhist, Sikh or Jaina outside Bengal, Madras or Bombay then embargo contained in Section 213 shall not apply. ... Therefore, there is no problem in arriving at the conclusion that if the will is made in Delhi relating to immovable property in Delhi by Hindu, Buddhist, Sikh or Jaina, no probate is required."

By endorsing this reasoning, the Supreme Court solidified the legal position that for the specified communities, wills pertaining to properties in Delhi or executed in Delhi (and not covered by S.57(a)/(b)) do not require mandatory probate.

Practical Application and Establishing Genuineness

The non-mandatory nature of probate in Delhi for such wills has practical implications. For instance, in Chhano Devi v. Delhi Development Authority (Delhi High Court, 2000), it was noted that the DDA could itself be satisfied as to the genuineness of a will by adopting a fair and reasonable method, or if unable to decide, could require the legatee to establish the will's genuineness in a court of law, without insisting on probate as a prerequisite for mutation.

Similarly, in Banwari Lal Charitable Trust Petitioner v. Uoi (2009 SCC ONLINE DEL 2981), the Delhi High Court directed the Land & Development Office not to insist on probate for a 30-year-old registered will for the purpose of property conversion, noting that probate of a will in Delhi is not mandatory. The Court observed, "The object and purpose behind obtaining probate is to prove authenticity and validity of the Will. In these circumstances, the respondent-L&DO's stand that the petitioner should obtain probate is not justified and correct."

More recently, in MRS. KUSUM TANEJA v. SHRI MANIK TANEJA AND OTHERS (2024 SCC ONLINE DEL 6857), the Delhi High Court reiterated, "Herein, it is important to note that in Delhi, it is not necessary to obtain Probate or Letter of Administration of a Will. Reference in this regard may be made to the judgment of the Supreme Court in Kanta Yadav v. Om Prakash Yadav & Ors., (2020) 14 SCC 102."

The Position of Wills Made by Indian Christians in Delhi

The legal position regarding wills made by Indian Christians presents a contrast.

Pre-2002 Amendment Jurisprudence: Winifred Nora Theophilus and Clarence Pais

Even before the 2002 amendment to Section 213(2), the Delhi High Court in Winifred Nora Theophilus v. Lila Deane & Others (2001 SCC ONLINE DEL 644), dealing with a will executed by an Indian Christian, held that probate was indispensable. The Court reasoned that the exceptions in Section 213(2)(i) (linked to Section 57) did not apply to Indian Christians, and therefore, the general rule in Section 213(1) mandating probate was applicable. The Court stated: "Crucially, Christians were conspicuously absent from the exemptions outlined in Section 213(2) [referring to clauses (i) and (ii) which provide territorial exemptions]. The court interpreted this omission to mean that Christians are unequivocally subject to the probate requirement without any exceptions."

The Supreme Court in Clarence Pais And Others v. Union Of India (2001 SCC 4 325), while adjudicating on the constitutionality of Section 213, affirmed that the provision was not discriminatory and applied to Indian Christians. The Court noted that the requirement of probate under Section 213 was procedural and historically rooted. This judgment implicitly supported the view that Section 213(1) could indeed mandate probate for Christian wills.

The Indian Succession (Amendment) Act, 2002

The Indian Succession (Amendment) Act, 2002 (Act 26 of 2002), amended Section 213(2) by deleting the words "or Indian Christians" from the opening sentence. The amended Section 213(2) now 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) ..."

Post-2002: General Applicability of Probate Requirement for Christian Wills

The effect of the 2002 amendment is to make it explicit that the general rule under Section 213(1) applies to wills made by Indian Christians. Since Indian Christians are not mentioned in the specific clauses (i) and (ii) of Section 213(2) which provide for the limited application of Section 213(1) based on Section 57, the requirement for probate for Christian wills is general and not circumscribed by the territorial limitations applicable to Hindus, Buddhists, Sikhs, and Jains. Consequently, for wills made by Indian Christians, probate is generally considered necessary, even in Delhi.

Proving a Will in Delhi When Probate is Not Mandatory

When probate is not mandatory for a will in Delhi (e.g., for a Hindu's will concerning property in Delhi), its genuineness and due execution must still be established if disputed in any legal proceedings. This is done by adhering to the standard rules of evidence.

Adherence to Section 63, ISA and Section 68, Evidence Act

Section 63 of the Indian Succession Act, 1925, prescribes the requirements for the due execution of an unprivileged will, including signing by the testator (or by some other person in his presence and by his direction) and attestation by two or more witnesses, each of whom has seen the testator sign or affix his mark, or has received from the testator a personal acknowledgment of his signature or mark.

Section 68 of the Indian Evidence Act, 1872, mandates that if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. The proviso to Section 68 exempts registered documents (not being wills) from this requirement unless execution is specifically denied. Thus, for wills, calling an attesting witness is crucial.

As noted in Capt. (Retd.) O.P Sharma & Anr. v. Kamla Sharma & Ors. (Delhi High Court, 2008), the proof of a will involves satisfying the court about its due execution and addressing any suspicious circumstances. The Delhi High Court in Sanjay Kalra v. State (Delhi High Court, 2023) also outlined the essential requirements for a valid will and the effect of probate. When probate is not sought or is not mandatory, these elements of proof must be adduced in the substantive proceedings where the will is relied upon.

Conclusion

In conclusion, the legal position in Delhi regarding the necessity of probate is nuanced and depends significantly on the religious affiliation of the testator and the applicability of Section 57 of the Indian Succession Act, 1925. For wills made by Hindus, Buddhists, Sikhs, or Jains that are executed in Delhi or pertain to immovable property situated in Delhi (and do not fall within the specific territorial confines of Section 57(a) or (b)), probate is not mandatory. This position, established through a consistent line of judicial precedents from the Punjab and Haryana High Court and the Delhi High Court, has been unequivocally affirmed by the Supreme Court in KANTA YADAV v. OM PRAKASH YADAV.

However, for wills made by Indian Christians, the requirement of probate under Section 213(1) is generally applicable, a position reinforced by the Indian Succession (Amendment) Act, 2002. In cases where probate is not mandatory, the validity and genuineness of a will must be established through due proof in accordance with the Indian Evidence Act, 1872, and the Indian Succession Act, 1925, should a dispute arise. This legal framework in Delhi balances the procedural requirement of authenticating wills with the practical considerations of estate administration, particularly for a significant section of its populace.