Introduction
Meaning of "mandatory probate"
When is probate mandatory?
Applying voluntarily
A probate is a certificate granted by the court in respect of a will, which proves the validity of the will and grants rights to the executor to administer the estate of the deceased testator in the manner set out in the will. After the demise of the testator, the executors named in the will can apply to the jurisdictional court to seek a probate to establish the will's authenticity.
Not all wills mandatorily require a grant of probate in India. It depends on the religion of the deceased testator and the jurisdiction with which the will has nexus. This article discusses the legal requirement of probate in Delhi and adjoining National Capital Regions of Noida and Gurugram (Gurgaon), in respect of wills made by Hindus.
Meaning of "mandatory probate"
The legal framework relating to probate of wills made by Hindus in India is set out in the Indian Succession Act (ISA) 1925.
The ISA provides for certain circumstances in which a probate is regarded as mandatory. However, the term "mandatory" is a misnomer, in that the ISA does not provide that the will would be invalid if it is not probated; instead, the will is regarded as valid (unless proved to be invalid(1)), but an executor or legatee under a will which is not probated will not be able to establish their right as such.
In other words, executors may deal with the testator's properties as per the will and transfer the title to the legatees in respect of such properties, but the title is complete only when the probate is obtained.(2) In instances when mandatory probate is not required, the completion of title of the executor or legatee in respect of properties bequeathed by will is not subject to grant of probate. The reference to "mandatory probate" in this article is to be understood in that context.
As noted above, the ISA sets out certain circumstances in which a probate would be mandatory. These circumstances are if the will was made:
- in Kolkata or Chennai (Madras) or Mumbai (Bombay); or
- outside those territories but relates to immoveable property situated within those territories.
Thus, probate is not mandatory if the will is made outside Kolkata, Chennai or Mumbai, and does not deal with immovable property in Kolkata, Chennai or Mumbai.
Accordingly, if the will is made by a Hindu in Delhi, Noida or Gurgaon and does not deal with immovable property in Kolkata, Chennai or Mumbai, probate would not be mandatory under the ISA.
This position is supported by numerous judgments. In Clarence Pais v Union of India,(3) the deceased held immovable property in Delhi. In this context, the Supreme Court has, among other things, observed that no probate would be required as the will was made by a Hindu outside the territories covered under the ISA (ie, Kolkata, Chennai or Mumbai). This was reiterated in Harvinder Singh v Ranjit Kaur,(4) by the Delhi High Court.
Noida falls within the state of Uttar Pradesh. In Fazalur Rehman v Gopal Sahu,(5) the Allahabad High Court held that obtaining probate is not mandatory for a will in respect of property located within Uttar Pradesh. The court relied on the old judgment of Nobat Ram v Gayatri Devi,(6) for this observation.
Similarly, Gurugram is in the state of Haryana. In Joginder Pal v Indian Red Cross Society,(7) the Supreme Court has affirmed that "it is not necessary to apply for letters of administration or probate in the States of Punjab and Haryana."
Although it is not mandatory to obtain probate of a will in Delhi, Noida or Gurugram, an executor may voluntarily apply for a probate. While obtaining probate in these regions is not common, it is occasionally prompted by certain regulatory authorities, banks or other institutions insisting on production of a probated will to recognise the claims of legal heirs. Executors are also well advised to seek probate of the will, even when not mandatory, before dealing with the testator's property if they anticipate a challenge to the validity of the will, as a grant of probate authenticates the will and is conclusive as to its due execution and validity.
For further information on this topic please contact Radhika Gaggar, Shaishavi Kadakia or Chirag Shah at Cyril Amarchand Mangaldas by telephone(+91 22 2496 4455) or email ([email protected], [email protected] or [email protected]). The Cyril Amarchand Mangaldas website can be accessed at www.cyrilshroff.com.
Endnotes
(1) The validity of the will may of course be assailed on grounds such as incapacity of the testator, undue influence on the testator or the will being a forgery.
(2) S Parthasarathy Aiyar v M Subbaraya Gramany, AIR 1924 Mad 67; Mohamed Salman Noorani v Radhika Bhargava, 2014 (6) BomCR 379.