Supreme Court: Requirement for executor or a legatee under a Will to seek probate or letters of administration

Shri Badri Nath Agarwal, r/o Bithoriya, Tehsil Haldwani District Nainital, Uttrakhand, died on 07.05.2011 eaving 5 sons and 1 daughter.

Major Ravinder Nath Agarwal claimed that his father Late Badri Nath executed his will and testament on 06.04.2011 revoking previous will dated 26.06.2005.

Major Ravinder Nath got mutation effect in his favour in revenue records, but the same became the subject matter of writ petition filed by Lily Nath on file of of High Court of Uttarakhand.

Major Ravinder Nath claims to be the legatee under the will and who got mutation affected in his favour in respect of one property, also filed civil suit in Suit No. 72 of 2011 on the file of civil judge senior division seeking a decree of permanent injunction.

Justice V. Ramasubramanian observed that “mandatory requirement to seek probate or letters of administration for establishing a right as executor or legatee under a Will, is applicable only to Wills made by a Hindu, Buddhist, Sikh or Jaina within the local limits of the ordinary original civil jurisdiction of certain High Courts and to Wills made outside those territories, to the extent they cover immovable property situate within those territories.”

Prohibition on a person cannot be imposed if its case is outside the purview of these provision, claiming a right under the will or relying on the will, in any proceedings initiated by legal heirs, said the court referring the case of Balbir Singh Wasu vs. Lakhbir Singh.

“A cumulative reading of Sections 57, 213 and 264 would show: (i) that a person claiming to be an executor or legatee under a Will cannot rely upon the Will, in any proceeding before a Court of justice, unless he has obtained probate (if an executor has been appointed) or letters of administration with the Will annexed, if such a Will has been executed by certain classes of persons; and (ii) that the jurisdiction to grant probate or letters of administration 22 vests only in courts located within the towns of Calcutta, Madras or Bombay and the Courts in any local area notified by the State Government in the Official Gazette.”

Therefore, what follows is that: (i) unless the testator belongs to any of the classes of persons specified in the Act; and (ii) unless the Will is made or some of the properties covered by the Will are located, within the local limits of a notified area, there is no necessity for an executor or a legatee under a Will to seek probate or letters of administration.

Before transfer Plea disposed off, Partition Suit no 126 of 2016 pending on the file of additional district Court Saket at Delhi shall stand transferred to the Delhi High Court and to be clubbed along with testamentary proceedings for disposal.

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