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probate law in India

 

A person who expires has either made a ‘will’ or died ‘intestate’.

In case a person has made a ‘will’, it should be submitted for Probate after his death.

A probate means a copy of the Will, certified under the seal of a competent Court with a grant of administration of the estate to the executor of the testator. It is the official evidence of an executor’s authority. A probate granted by a competent court is conclusive evidence of the validity of a Will until it is revoked and no evidence can be admitted to impeach it except in a proceeding to revoke the probate.

In case a person dies ‘intestate’, then all the legal heirs have to apply to a competent court for a ‘Succession Certificate’ so that his property can be devolved upon his successors

What is succession Certificate:

A succession certificate is issued by a civil court to the legal heirs of a deceased person. If a person dies without leaving a will, a succession certificate can be granted by the court to realise the debts and securities of the deceased. It establishes the authenticity of the heirs and gives them the authority to have securities and other assets transferred in their names as well as inherit debts. It is issued as per the applicable laws of inheritance on an application made by a beneficiary to a court of competent jurisdiction. A succession certificate is necessary, but not always sufficient, to release the assets of the deceased. For these, a death certificate, letter of administration and no-objection certificates will be needed.

Section 372 in The Indian Succession Act, 1925
372 Application for certificate. —
(1) Application for such a certificate shall be made to the District Judge by a petition signed and verified by or on behalf of the applicant in the manner prescribed by the Code of Civil Procedure, 1908 (5 of 1908) for the signing and verification of a plaint by or on behalf of a plaintiff, and setting forth the following particulars, namely:—

(a) the time of the death of the deceased;
(b) the ordinary residence of the deceased at the time of his death and, if such residence was not within the local limits of the jurisdiction of the Judge to whom the application is made, then the property of the deceased within those limits;
(c) the family or other near relatives of the deceased and their respective residences;
(d) the right in which the petitioner claims;
(e) the absence of any impediment under section 370 or under any other provision of this Act or any other enactment, to the grant of the certificate or to the validity thereof if it were granted; and
(f) the debts and securities in respect of which the certificate is applied for.
(2) If the petition contains any averment which the person verifying it knows or believes to be false, or does not believe to be true, that person shall be deemed to have committed an offence under section 198 of the Indian Penal Code, 1860 (45 of 1860).
 [(3) Application for such a certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of portions thereof.]
What is the meaning of Probate of Will in India.

A Probate is a document that certifies that the copy of the Will (including Codicils, if there are any) that is attached to it, has been proved in the relevant court. A Probate is issued under a seal of the Court. A Probate can be granted by the Court only to the Executor (ie the person who will implement or execute the Will after its maker’s death). The legal effect of the grant of a Probate is that it establishes the legal character of the Executor to implement the Will and to the validity of the Will. For example if a person appointed as the Executor, transfers certain shares of a company to another person as per the Will, then the company whose shares are being transferred can ask for the status of the Executor, since on their record, the owner is another person. In such a case the Probate establishes the Executor’s right to apply for the transfer of the shares since the owner has died and that the Will is valid.

Section 276 in The Indian Succession Act, 1925
276. Petition for probate.—
(1) Application for probate or for letters of administration, with the Will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the Will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating—

(a) the time of the testator’s death,
(b) that the writing annexed is his last Will and testament,
(c) that it was duly executed,
(d) the amount of assets which are likely to come to the petitioner’s hands, and
(e) when the application is for probate, that the petitioner is the executor named in the Will.
(2) In addition to these particulars, the petition shall further state,—

(a) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and
(b) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.
(3) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner’s hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate.

 

 

Section 276 in The Indian Succession Act, 1925

276. Petition for probate.-

(1) Application for probate or for letters of administration, with the will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating–

(a) the time of the testator’ s death.

(b) that the writing annexed is his last will and testament,

(c) that it was duly executed,

(d) the amount of assets which are likely to come to the petitioner’ s hands, and

(e) when the application is for probate, that the petitioner is the executor named in the will.

(2) In addition to these particulars, the petition shall further state,–

(a) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and

(b) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.

(3) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner’ s hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate.

 

HIGH COURT OF DELHI AT NEW DELHI

% Date of Judgment: 21.1.2010

+ TEST CAS.No.35/1999

SHAMA SETHI ……Petitioner Through: Mr. Anil K. Kher, Senior

Advocate with Mr.Rishi

Manchanda &

Mr.S.S.Pandit, Advocates.

Versus

STATE & OTHERS …….Respondents Through: None.

CORAM:

HON’BLE MS. JUSTICE INDERMEET KAUR

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

Yes

3. Whether the judgment should be reported in the Digest? Yes

INDERMEET KAUR, J. (Oral)

1. This is a petition under Section 276 of the Indian Succession

Act for grant of probate of the Will of late Sh.Din Dayal Kaicker.

Sh.Din Dayal Kaicker had died on 22.12.1985. Petitioner is the

daughter of the deceased and she is seeking a probate of the Will

dated 18.9.1978 duly registered with the Sub-Registrar.

2. The details of the property of which probate is sought are

mentioned herein as follows:

Test cas.35/1999 Page 1 of 8 A. House No.C-155, Greater Kailash Part I, New Delhi.

B. 1/3rd share in Commercial Building No.AB-4, Safdarjang Development Scheme, Near Kamal Cinema, New Delhi

 

family

settlement.

9. On 17.5.2006, the following issues were framed:

1. Is the petitioner entitled to grant of probate of the Will dated 18.9.1978?

2. Were there family settlements on 22.8.90 and 31.3.98?

3. Does the family settlements on 22.8.90 and 31.3.98 stand in the way of the grant of probate?

10. On 13.10.2006 issues no.2 and 3 relating to the family

settlement had been deleted. Court had held that the issue

relating to the title of the property stated to be belonging to the

deceased could not be gone into in a petition under Section 276 of

the Indian Succession Act.

11. The only issue which remained for adjudication was issue

no.1. The parties had led evidence by way of affidavits. Objector

no.4 did not support his objections with any evidence; he did not

file any evidence by way of affidavit; Objector no.7 and 9 had filed

evidence by way of affidavit. On 15.12.2009, objector no.7 had

made a statement on oath in court that he has no objection if the

probate of the Will is granted.

12. Evidence of Objector no.9 only remains to be considered by

this court. None has appeared

 

Kaicker

had executed this Will. On 18.9.1978 she has reiterated that the

probate of the Will cannot be granted in view of aforestated family

settlement.

17. It is well settled proposition of law that in a petition for grant

of probate the court only has to see as to whether the testator had

in fact made the Will voluntarily and of his own volition; it was a

genuine document, properly executed and attested as per law and

the testator at the time of executing the said Will had the capacity

to execute it. The petition under Section 276 of the Indian

Succession Act cannot go beyond this. It is not within the scope of

such a petition to go into the subsequent family settlement or

arrangement.

18. In this case Objector No.9 is the only contesting objector.

She has however admitted the execution of the Will dated

18.9.1978 by her deceased father. All the legal heirs have in fact

admitted this document.

 

Test cas.35/1999 Page 5 of 8

19. There is no dispute that this Will had in fact been executed

by the deceased Din Dayal Kaicker bequeathing his property both

movable and immovable in favour