Uniformity in Succession, Clarity in Service: Key Takeaways from the Repealing & Amending Bill, 2025

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 Repealing & Amending Bill, 2025

Why this Bill matters

The Repealing and Amending Bill, 2025 (Bill No. 193 of 2025, as introduced in Lok Sabha) is a periodic “clean-up” measure: it repeals enactments that have ceased to be in force/are obsolete and corrects selected formal defects through limited amendments.​

Operationally, it (i) repeals enactments listed in the First Schedule, (ii) amends enactments listed in the Second Schedule, and (iii) carries a standard savings clause to protect past acts, accrued rights/liabilities, and pending proceedings from being disturbed by repeal.

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Video article: End of mandatory Probate

 

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Advisory: The 2025 Transition from Mandatory to Permissive Probate

 

1. Executive Context: The Decoupling of Probate and Property Rights

The enactment of the Repealing and Amending Act 2025 marks the long-overdue dismantling of a colonial bottleneck that has constrained Indian succession for over a century. For decades, beneficiaries were caught in a paradoxical legal trap: they possessed the "key to the safe" (a valid Will) but were forbidden by law from opening it without completing an arduous and expensive "government course" known as probate. This mandatory gatekeeper model prioritized procedural compliance over inherent inheritance rights, creating an unnecessary barrier between heirs and their legacies.

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Supreme Court: State Cannot Invoke Doctrine Of Escheat To Challenge A Will Which Is Granted Probate

6.2. The grant of probate by a competent court of law can be assailed only by those who are the likely heirs if the Will is to fail, by either filing an appeal against it or by seeking revocation of the grant of probate under Section 263 of the IS Act, 1925. Further, it is only when there is failure of heirs that the estate of an intestate Hindu would devolve on the Government under Section 29 of the Act. This means that till that stage arrives, the Government is a stranger to the probate proceedings as well as any proceeding regarding succession under the personal law. Merely because the State of Rajasthan in the instant case has invoked the Rajasthan Escheat Regulation Act, 1956, would not give locus standi to assail the grant of probate of the Will of the testator. Hence, we have considered the locus standi of the State of Rajasthan to file these special leave petitions as a preliminary issue in these Special Leave Petitions.

6.3. In view of the above, we find that the State of Rajasthan in the instant case has no locus standi to challenge the judgment of the Division Bench of the High Court on the strength of the escheat of the properties of the testator. Section 29 of the Act does not apply in the instant case as this is not a case of intestate succession but one of testamentary succession as probate of the Will has been granted by High Court.

6.4. We may also mention that in the event the probate has been granted illegally to the legatees of a Will inasmuch as the Will itself is not a valid Will, then under Section 263 of the IS Act only the persons who could have succeeded, by the Will being declared invalid namely, the successors under the Act, as per Section 8 thereof could have filed an application under Section 263 of the IS Act for revocation of the grant of probate and none else.

6.5. In other words, we clarify that it is only in the event of intestate succession, Section 29 of the Act applying that there would be a devolution of the estate of a deceased male Hindu on the Government and not otherwise. Since such a situation does not arise in the instant case, as probate of the Will of testator has been granted by a competent Court of law; this is a case of testamentary succession.

 In the Supreme Court of India

(Before B.V. Nagarathna and Satish Chandra Sharma, JJ.)

SLP (C) No(s). 14721-14723/2024

State of Rajasthan Vs  Ajit Singh and Others 

Decided on September 1, 2025

Citation: 2025 SCC OnLine SC 1992

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Beneficiary's Right to Seek Letters of Administration When Executor Refuses to Act: Analyzing Vatsala Srinivasan v. Shyamala Raghunathan

 Introduction

The administration of estates through wills can face significant challenges when the appointed executor refuses to perform their duties. A crucial question arises: Can beneficiaries under a will independently seek letters of administration when the executor fails to act? The Supreme Court of India addressed this vital issue in the landmark case of Vatsala Srinivasan v. Shyamala Raghunathan (2016) 13 SCC 253, establishing clear legal principles that protect beneficiaries' rights.

The Legal Dilemma

When a testator appoints an executor in their will, the expectation is that this person will dutifully carry out the administration of the estate. However, situations arise where:

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Bombay HC: Sub-tenant of deceased is not his legal heir, hence he is not entitled to seek revocation of his probate

There is no dispute about the proposition laid down by this decision but it cannot be ignored that the person applying for revocation must have some right or locus-standi to do so. It may be pointed out that the deceased as well as the respondent are Parsis. Mr. Madon drew my attention to the decision in Perviz Sarosh v. Mrs. Viloo Plumber MANU/MH/0309/2000 : AIR2000Bom189 , wherein a learned single Judge of this Court (Nijjar, J.) held that in order to have locus-standi for challenging the Probate in respect of the Will of a Parsi on the ground sets out in Section 263 of the Indian Succession Act, right in the inheritance under Section 51 of the Indian Succession Act has to be made out and the same is prerequisite for raising challenge under Section 263. The learned Judge observed that challenge to the probate under Section 263 is not in the nature of a public interest litigation and it can only be at the instance of a person who has a slight interest in the estate for themselves. Admittedly, the petitioner is a non-Parsi and he is not a legal heir of the deceased. Therefore, he has no locus standi or interest to challenge the probate under Section 263 granted in favour of the respondent. All that the petitioner claims is a right of sub-tenancy in respect of the above mentioned house flat which belonged to the deceased. The question whether the petitioner is or is not a tenant or sub-tenant of the said suit house is pending before the Small Causes Court. Even assuming for the sake of argument that the petitioner is a tenant in the said house, still he cannot be said to have a right to apply under Section 263 of the Indian Succession Act. In this respect, I am supported by a decision of a learned single Judge of the Delhi High Court in Dr. Jagdish Chandra v. State and Anr., MANU/DE/0276/1988 : 36(1988)DLT272 , wherein it was held that a tenant has no right to apply under Section 263 of the Indian Succession Act for cancellation or revocation of the probate granted for the Will executed by the landlord/owner to his adopted son. The ratio of this decision appears to be that a tenant does not have any interest in the estate of the deceased landlord. Even if the landlord dies intestate, the tenant is not likely to get anything unless he is one of the legal heirs of the deceased landlords. In the instant case, the petitioner is admittedly not related to the deceased nor he is her legal heir. He does not have interest in the estate of the deceased in the sense that testacy or intestacy of the deceased landlord does not affect his right as the tenant, if at all he is so. His interest is not such as would be affected by the grant of probate or letters of administration. He continues to be the tenant, if at all he is, irrespective of the fact whether the Will set up by the respondent is true or false and will get protection of the Bombay Rent Act. But he does not have any right or locus standi to challenge the Will of the deceased. {Para 7}

 IN THE HIGH COURT OF BOMBAY

Misc. Petition No. 49 of 2002

Decided On: 24.01.2003

Rajiv Ramprasad Gupta Vs. Rustom Sam Boyce

Hon'ble Judges/Coram:

J.A. Patil, J.

Citation: 2003(2) Bom C. R 460,MANU/MH/0147/2003.

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Can the court grant probate to the legatee or executor of the will only?

  In the said backdrop, if the provisions of Probate and Letter

of Administration are referred to under the Indian Succession Act,

1925 (herein after referred to as “the Act”) the same are as under:

“222. Probate only to appointed executor. - (1)

Probate shall be granted only to an executor appointed by

the Will.

(2) The appointment may be expressed or by necessary

implication.

232. Grant of administration of universal or residuary legatees. - When -

(a) the deceased has made a Will, but has not appointed

an executor, or

(b) the deceased has appointed an executor who is

legally incapable or refused to act, or who has died before

the testator or before he has proved the Will, or

(c) the executor dies after having proved the will, but

before he has administered all the estate of the deceased,

a universal or a residuary legatee may be admitted to

prove the Will, and letters of administration with the Will

annexed may be granted to him of the whole estate, or of

so much thereof as may be unadministered.”

5.2 Thus, from a bare reading of the aforesaid provisions, it is

abundantly clear that by virtue of Section 222, Probate shall be

granted only to an executor appointed by the Will and if the

deceased has made a Will, but has not appointed an executor,

letter of administration can be granted by virtue of Section 232(a) of the Act.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 16538 of 2017

MAHENDRA HARILAL PAREKH & 1 Vs MEENABEN HIRENBHAI PAREKH

CORAM: DR. JUSTICE ASHOKKUMAR C. JOSHI

Date : 16/03/2022

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Whether a legal representative of the deceased partner of a partnership firm can seek reference of the dispute to arbitration?

While right to sue for rendition of accounts of partnership firm survives on the legal representative of a deceased partner, he is also entitled to invoke the arbitration clause contained in the partnership deed. In the instant case, the appellant being the only son of his deceased mother, undisputedly a partner in the partnership firm with the respondents especially where the dispute concerning the partnership affairs had arisen already during her life time. The view taken in the impugned order with the appellant has no presently establishable binding arbitration agreement with the respondent is erroneous in law and facts. The impugned order is also bad in law in the teeth of the law laid down by this Court in Smt. Premlata and Anr. v. Ishwar Dass Chamanlal and Ors. AIR 1955 SC 714. This apart, the appointment of arbitrator could not be rejected on the ground of non-production of the will executed by the mother when no family member is disputing the will and the appellant's claim vis-a-vis the partnership firm, even otherwise also the appellant is the legal heir of the deceased partner being her only son. In our view, non-probate of will is not a germane factor to be considered at the time of appointment of arbitrator under Section 11 of the Arbitration Act. In our opinion, the partnership deed clearly recites that all the disputes touching the affairs of the partnership firm were referable to arbitrator and it cannot be gainsaid that the dispute regarding accounts of the partnership firm is a dispute touching the affairs of the firm. As already stated, it was not legally essential to specifically make a mention that the partners included their legal heirs, representatives, assigns or legatees etc. and the arbitration clause could be invoked by the appellant as the legatee as well as the legal heir/legal representative of the deceased Dulari Devi particularly where the dispute had arisen during her life time. The appellant's claim in the instant case is based on the will as well as being a legal heir of the deceased Dulari Devi. The appellant, in our opinion, possessed a legal and enforceable right to invoke arbitration clause and moved application under Section 11 of the Arbitration Act before the High Court for appointment of arbitrator. The word "party" as used in the partnership deed does not exclude inclusion of legal heirs, legal representatives etc. as being canvassed by the respondents. Thus, in our opinion, in view of the provisions of Sections 40 and 46 of the Partnership Act read with Section 40 of the Arbitration Act, the appellant has a legal right to commence arbitration by moving an application under Section 11 of the Arbitration Act in the High Court as in our view, the right to sue survives on him as legal representatives of the deceased Dulari Devi and he is entitled to invoke Clause 13 of the partnership deed. Moreover, the dispute referable to arbitration had already arisen during the life time of Dulari Devi which is also well settled that where a dispute is referable to arbitration, the parties cannot be compelled to take recourse to in the civil courts.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1526 of 2007

Decided On: 21.03.2007

Ravi Prakash Goel  Vs.   Chandra Prakash Goel and Ors.

Hon'ble Judges/Coram:

A.R. Lakshmanan and Altamas Kabir, JJ.

Citation: (2008) 13 SCC 667,MANU/SC/7232/2007

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Whether Unfair Disposition Or Unjust Exclusion Of Legal Heirs In A Will Can Be Regarded As A Suspicious Circumstance?

 In the given set-up, a basic question immediately crops up as to

what could be the reason for the testatrix being desirous of providing

unequal distribution of her assets by giving major share to the appellant in

preference to her other two children. The appellant has suggested that the

parents had special affection towards her. Even if this suggestion is taken

on its face value, it is difficult to assume that the alleged special affection

towards one child should necessarily correspond to repugnance towards

the other children by the same mother. Even if the parents had special liking

and affection towards the appellant, as could be argued with reference to

the gift made by the father in her favour of the ground floor of the property

in question, it would be too far stretched and unnatural to assume that by

the reason of such special affection towards appellant, the mother drifted far

away from the other children, including the widowed daughter who was

residing on the upper floor of the same house and who was taking her care.

In the ordinary and natural course, a person could be expected to be more

inclined towards the child taking his/her care; and it would be too unrealistic

to assume that special love and affection towards one, maybe blue-eyed,

child would also result in a person leaving the serving and needy child in

lurch. As noticed, an unfair disposition of property or an unjust exclusion of

the legal heirs, particularly the dependants, is regarded as a suspicious

circumstance. The appellant has failed to assign even a wee bit reason for

which the testatrix would have thought it proper to leave her widowed

daughter in the heap of uncertainty as emanating from the Will in question.

Equally, the suggestion about want of thickness of relations between the

testatrix and her son (respondent No.2) is not supported by the evidence on

record. The facts about the testatrix sending good wishes on birthday to her

son and joining family functions with him, even if not establishing a very

great bond between the mother and her son, they at least belie the

suggestion about any strain in their relations. Be that as it may, even if the

matter relating to the son of testatrix is not expanded further, it remains

inexplicable as to why the testatrix would not have been interested in

making adequate and concrete provision for the purpose of her widowed

daughter (respondent No.1).

29.3. The aforesaid factor of unexplained unequal distribution of the

property is confounded by two major factors related with making of the Will

in question: one, the active role played by the appellant in the process; and

second, the virtual exclusion of the other children of testatrix in the process.

As noticed, an active or leading part in making of the Will by the beneficiary

thereunder has always been regarded as a circumstance giving rise to

suspicion but, like any other circumstance, it could well be explained by the

propounder and/or beneficiary.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3688 OF 2017

KAVITA KANWAR. Vs.  MRS. PAMELA MEHTA 

Dinesh Maheshwari, J.

Dated: Dated: 19th May, 2020.

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When court should not permit joint trial of civil suit and probate proceeding?

Court refused to order joint trial of a probate proceeding and a civil suit dealing with one of the properties mentioned in the Will inasmuch as it found that there was no challenge to the Will in the suit, and the challenge was only to the status of the property and the right of the testator to bequeath the same.

A reading of the above would clearly show that the petitioner infact accepted the execution of the Will by the testator. In view of the above, there will be no commonality of issues or evidence between the probate petition and the suit, especially when the Issue no. 4 framed in the probate petition by the order dated 31.10.2019 stands deleted by the subsequent order dated 07.03.2020.

9. The learned counsel for the petitioners has placed reliance on the judgments of the Supreme Court in Balbir Singh Wasu vs. Lakhbir Singh and Others, (2005) 12 SCC 503, and Nirmala Devi vs. Arun Kumar Gupta and Others, MANU/SC/3236/2000 : (2005) 12 SCC 505 to contend that in a similar circumstance the Supreme Court had directed the probate proceedings and the Civil Suit to be tried by the same Court. He further places reliance on the order dated 29.01.2013 passed by this Court in TR.P. (C) 20/2012 titled Sanjay Arora and Ors. vs. Sudhir Kumar Arora and Ors., as also of the order dated 10.01.2017 of this Court in TRP. (C) 127/2019 titled Ajay Kumar Gupta & Anr. vs. Roopa Gupta, to contend that even this Court has ordered transfer and joint trial of probate proceedings and Civil Suit.

10. In the peculiar facts of the present case, I am not persuaded by the arguments of the learned counsel for the petitioners. In the present case, as noted hereinabove, in the Suit there is no challenge to the execution of the Will by the testator. The only challenge is to the status of the property and the rights of the testator to bequeath the same. This is not the subject matter of the probate petition and the learned Court has rightly deleted the issue with respect to the same by its order dated 07.03.2020.In view of the above, I find no merit in the present petition and the same is dismissed.

IN THE HIGH COURT OF DELHI

TR. P. (C.) 161/2019 and CM No. 49960/2019

Decided On: 12.03.2020

 Amiteshwar Singh  Vs.  Kamal Nain

Hon'ble Judges/Coram:

Navin Chawla, J.

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Whether a party can obtain letter of administration even after obtaining probate?

Rejecting Mr. Dalpatrai's contention, I summarise my conclusions thus-

(a) Under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made;

(b) The assumption that Under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted;

(c) Such an application is for the court's permission to perform a legal duty created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed;

(d) The right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceased's death;

(e) Delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay, greater would be the suspicion;

(f) Such delay must be explained, but cannot be equated with the absolute bar of limitation; and

(g) Once execution and attestation are proved, suspicion of delay no longer operates.

This Court did not agree with/approve conclusion (b). However, approved conclusion (c), reproduced hereinabove.

17. Therefore, considering the law laid down by this Court in the case of Kunvarjeet Singh Khandpur (supra), it can be said that in a proceeding, or in other words, in an application filed for grant of probate or letters of administration, no right is asserted or claimed by the applicant. The applicant only seeks recognition of the court to perform a duty. Probate or letters of administration issued by a competent court is conclusive proof of the legal character throughout the world. That the proceedings filed for grant of probate or letters of administration is not an action in law but it is an action in rem. As held by this Court in the case of Kunvarjeet Singh Khandpur (supra), an application for grant of probate or letters of administration is for the court's permission to perform a legal duty created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed.

Therefore, even if the will is probated by any court mentioned in Section 228 of the Act, right to get the letters of administration is a continuous right which can be exercised any time, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10482 of 2013

Decided On: 29.04.2019

 Sameer Kapoor  Vs. The State 

Hon'ble Judges/Coram:

L. Nageswara Rao and M.R. Shah, JJ.

Citation: AIR 2019 SC 3318

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What is difference between probate and letter of administration?

A Grant of Probate is only issued to named Executors of the Will while Letters of Administration are issued to the persons entitled under the rules of intestacy if the deceased died without a Will.

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How to ascertain limitation for filing application for revocation of probate?

The decision in Lynette Fernandes v. Gertie Mathias, (2018)

1 SCC 271, dealt with the precise issue of the period of limitation

applicable for an application for cancellation of a probate or

letters of administration. This court held as follows:

“One must keep in mind that the grant of probate by

a Competent Court operates as a judgment in rem

and once the probate to the Will is granted, then

such probate is good not only in respect of the

parties to the proceedings, but against the world. If

the probate is granted, the same operates from the

date of the grant of the probate for the purpose of

limitation Under Article 137 of the Limitation Act in

proceedings for revocation of probate. In this matter,

as mentioned supra, the Appellant was a minor at

the time of grant of probate. She attained majority on

09.09.1965. She got married on 27.10.1965. In our

considered opinion, three years limitation as

prescribed Under Article 137 runs from the date of

the Appellant attaining the age of majority i.e. three

years from 09.09.1965. The Appellant did not choose

to initiate any proceedings till the year 25.01.1996

i.e., a good 31 years after she attained majority. No

explanation worthy of acceptance has been offered

by the Appellant to show as to why she did not

approach the Court of law within the period of

limitation. At the cost of repetition, we observe that

the Appellant failed to produce any evidence to prove

that the Will was a result of fraud or undue

influence. The same Will has remained unchallenged

until the date of filing of application for

revocation. No acceptable explanation is offered for

such a huge delay of 31 years in approaching the

Court for cancellation or revocation of grant of

probate.”

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1399 OF 2010

RAMESH NIVRUTTI BHAGWAT  VS. DR. SURENDRA MANOHAR PARAKHE 

S. RAVINDRA BHAT, J.

Dated: October 04, 2019.
Citation: 2020(2) MHLJ 28

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Whether application for revocation of probate should be tried as civil suit?

 We are of the considered view that an application to revoke probate or letter of administration would be treated as miscellaneous application and may be disposed of on the fact situation in an appropriate case either summarily or after recording evidence. The application to revoke the probate or letter of administration thus may be disposed of by the District Judge either summarily or in a given situation where it requires proof of the facts by adduction of evidence by the parties by recording such evidence as is adduced by the parties. The burden will be on the applicant to prove the facts to revoke the probate or letter of administration and the respondent who obtained probate or letter of administration has to disprove the contentions of the applicant. In that situation, based upon the given facts situation, it will be for the Court to dispose it of either summarily or after giving opportunity to both the parties to adduce evidence and consideration thereof. Under these circumstances, it is not necessary that the application for revocation of the probate or letter of administration would be treated as a suit as a contemplated under Section 295 of the Act. If the contention of Shri Puri merits acceptance, then any proceedings under the application to revoke the probate or letter of administration should be treated as a suit: the applicant cannot prove the will and at the same time cannot contend that the will was not validly executed. Therefore, it would be self contradictory to adopt such a procedure. Accordingly, we are of the view that the procedure required under Section 295 need not be adopted for disposal of the application filed under Section 263 for revocation of the probate or the letter of administration. It would be treated as miscellaneous application and disposed of as indicated earlier according to the given fact situation. In fact, the Bombay High Court came to consider the question, not directly on this issue but in an analogous situation in Narbheram Jivaram Purohit vs. Jevallabh Harijivan, [MANU/MH/0198/1932 : Vol. XXXV (1933) BLR 998]. Therein, the learned single Judge had held that the proper procedure for revocation of probate granted by the High Court is by way of a petition filed in the testamentary and intestate jurisdiction of the Court, and not by way of suit in its Ordinary Original Civil Jurisdiction. In other words, the Court indicated that it need not be treated as a suit on the original side of the Court but it could be disposed of as an application independent of the suit. Thus we hold that the High Court was clearly in error in reaching the conclusion that it should be treated as a suit and disposed of under Section 295."

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 4807 of 2018

Decided On: 07.03.2019

 Harjit Singh Vs.   Paramjitsingh

Hon'ble Judges/Coram:

R.V. Ghuge, J.

Citation: 2019(5) MHLJ 76

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Whether suit filed on basis of will is tenable if probate of will is not obtained?

Sub-section (1) of Section 213 of the Indian Succession Act which is relevant for the purpose reads as follows:--

"213. Right as executor or legatee when established--

(1) No right as 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 or with a copy of an authenticated copy of the Will annexed."

8. From a perusal of the provision aforesaid it is apparent that no right as executor or legatee can be established in any court of justice unless the 'Will' is probated by the competent court. In the present case the 'Will' was not probated on the date of institution of the suit as such the suit was itself incompetent. If the impugned order would have been passed in favour of the petitioner whole suit would have been dismissed.

IN THE HIGH COURT OF PATNA

Civil Revision No. 293 of 2010

Decided On: 10.01.2019

Sushila Devi Vs.  Chandra Bhushan Chaudhary and Ors.

Hon'ble Judges/Coram:

Birendra Kumar, J.

Citation: AIR 2019 Patna 51

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How to ascertain limitation for making application to get letters of administration?

 In the aforesaid decision, this Court also considered
and referred to paragraph 16 of the decision of the Bombay High
Court in the case of Vasudev Daulatram Sadarangani (supra) in
paragraph 15, which reads as follows:
“16. Rejecting Mr. Dalpatrai’s contention, I summarise
my conclusions thus –
(a) Under the Limitation Act no period is advisedly
prescribed within which an application for probate,
letters of administration or succession certificate must be
made;
(b) The assumption that under Article 137 the right to
apply necessarily accrues on the date of the death of the
deceased, is unwarranted;
(c) Such an application is for the court’s permission to
perform a legal duty created by a will or for recognition as
a testamentary trustee and is a continuous right which
can be exercised any time after the death of the deceased,
as long as the right to do so survives and the object of the
trust exists or any part of the trust, if created, remains to
be executed;

(d) The right to apply would accrue when it becomes
necessary to apply which may not necessarily be within 3
years from the date of the deceased’s death;
(e) Delay beyond 3 years after the deceased’s death
would arouse suspicion and greater the delay, greater
would be the suspicion;
(f) Such delay must be explained, but cannot be
equated with the absolute bar of limitation; and
(g) Once execution and attestation are proved,
suspicion of delay no longer operates.”
This Court did not agree with/approve conclusion (b).
However, approved conclusion (c), reproduced hereinabove.
17. Therefore, considering the law laid down by this Court
in the case of Kunvarjeet Singh Khandpur (supra), it can be said
that in a proceeding, or in other words, in an application filed for
grant of probate or letters of administration, no right is asserted
or claimed by the applicant. The applicant only seeks recognition
of the court to perform a duty. Probate or letters of
administration issued by a competent court is conclusive proof of
the legal character throughout the world. That the proceedings
filed for grant of probate or letters of administration is not an
action in law but it is an action in rem. As held by this Court in
the case of Kunvarjeet Singh Khandpur (supra), an application
for grant of probate or letters of administration is for the

court’s permission to perform a legal duty created by a will
or for recognition as a testamentary trustee and is a
continuous right which can be exercised any time after the
death of the deceased, as long as the right to do so survives
and the object of the trust exists or any part of the trust, if
created, remains to be executed.
Therefore, even if the will is probated by any court
mentioned in Section 228 of the Act, right to get the letters of
administration is a continuous right which can be exercised any
time, as long as the right to do so survives and the object of the
trust exists or any part of the trust, if created, remains to be
executed.
18. Applying the law laid down by this Court in the
aforesaid decision and the observations made hereinabove, the
submission on behalf of the appellants that Probate Case No.
15/2001 filed by respondent no.2 for letters of administration
under Section 228 of the Act, read with Section 276 of the Act is
barred by law of limitation, cannot be accepted. At this stage, it
is required to be noted that even in the plaint, it is specifically
pleaded that after passing away of the father of the parties in the

year 2000, the appellants started intermeddling with properties
bequeathed to respondent no.2, which were situated in Delhi
and, therefore, left with no option, he was compelled to apply for
letters of administration. Therefore, even as per the pleadings in
the application, the cause of action started from the date on
which the appellants started intermeddling with the properties
bequeathed to respondent no.2, after passing away of the father
of the parties in the year 2000. Therefore, in the facts and
circumstances of the case, both the learned Single Judge and the
Division Bench have rightly refused to reject the application in
exercise of powers under Order VII Rule 11 of the CPC. In the
facts and circumstances of the case and as observed
hereinabove, it cannot be said that the application for letters of
administration was clearly barred by the law of limitation which
was required to be rejected in exercise of powers under Order VII
rule 11(d) of the CPC. We are in complete agreement with the
view taken by the High Court.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10482 OF 2013

Sameer Kapoor  Vs The State(New Delhi )

Dated:APRIL 29, 2019.

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Whether executor of will can represent estate of deceased testator without obtaining probate?

Division Bench of this Court in the case of Ramesh Sippy Vs. Suresh Gopaldas Sippy & Ors. (supra) has after adverting to the judgment of the Division Bench of this Court in the case of Ramniklal Amritlal Shah (supra) and several other judgments has allowed an executor to proceed with the proceedings filed by the original testator without obtaining probate at that stage and merely on the statement made by the applicant that he would file a petition for probate within one month from the date of the said order. The judgment of the Division Bench would squarely apply to the facts of this case. I am respectfully bound by the said judgment.

28. Orissa High Court in the case of Surendra Chandra Jena and Ors. (supra) after construing Section 211 of the Indian Succession Act, 1925 and Order XXII Rule 10 of the Code of Civil Procedure, 1908 held that the executor is not required to wait for the grant of the probate but can ipso facto being the legal representative prosecute the lis in view of the devolution of the interest under Order XXII, Rule 10 of the Code of Civil Procedure, 1908 inasmuch as the title of the testator stands vested in the executor on the his death. In my view, the judgment of the Orissa High Court in the case of Surendra Chandra Jena and Ors. (supra) would squarely apply to the facts of this case. I am respectfully agree with the views expressed by the Orissa High Court in the said judgment.

29. Order XXII Rule 3 read with Order XXII Rule 1 of the Code of Civil Procedure, 1908 clearly indicates that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Even if the sole plaintiff dies and if the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. Under Section 2(11) of the Code of Civil Procedure, 1908, since an executor/executrix represents the estate of the deceased person, he is a legal representative within the meaning off Section 2(11) of the Code of Civil Procedure, 1908 and is thus entitled to sue or is sued under Section 211 of the Indian Succession Act, 1925.

30. The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such. In my view, since the executor/executrix has alleged to have been appointed under the last Will and Testament of the original plaintiff, she being a legal representative of the said estate and the property forming part of the estate vests in her. The right to sue survives considering the nature of the relief sought in the plaint and thus she deserves to be impleaded as party-plaintiff in place of the original plaintiff.

IN THE HIGH COURT OF BOMBAY

Chamber Summons No. 424 of 2015 in Suit No. 341 of 2014 

Decided On: 08.01.2019

 Geeta Patel D'Souza  Vs. Girnar Apartments Co-operative Housing Society Ltd. and Ors.

Hon'ble Judges/Coram:

R.D. Dhanuka, J.

Citation: AIR 2019 Bom 34,2019(3) MHLJ 745

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What are duties of executor of will?

 The irrevocability of an executor's renunciation is not to be taken lightly. It is the conscious giving up (hence, 'renunciation') of a very solemn charge in the nature of a duty of an entrustment; and this is a special conferment on a named individual by a person now dead. An executor's heirs cannot succeed to his position. He, and he alone, can occupy that position. For this reason, there is no 'deemed' or 'implied' renunciation.1 It must be in writing, or it must be to the Court.2

8. The executor (or administrator) of a deceased is his legal representative. The property of the deceased vests in him as such.3 No right as an executor is established unless probate is granted.4 Probate can only be granted to an executor named as such in the Will, and no one else, though the appointment may be express or implied.5 Probate, when granted, establishes the Will from the death of the testator and validates all intermediate acts of the executor as such.6

9. An executor is a confidante of choice of the testator. Once he renounces this most solemn trust, the renunciation is irrevocable and irreversible. He cannot be allowed re-entry. He cannot renounce or recant his renunciation. Otherwise, executors will constantly step in and out of probate proceedings. If executors constantly renounce executorship and then renounce their renunciation, the inevitable result is uncertainty, confusion and chaos in the administration of the estate in terms of the Will. This is not what the law contemplates as the duties of an executor at all.

IN THE HIGH COURT OF BOMBAY

Notice of Motion No. 74 of 2015 in Testamentary Suit No. 14 of 2004 in Testamentary Petition No. 80 of 2004 

Decided On: 03.05.2018

Vasant Narayan Sardal Vs. Ashita Tham and Ors.

Hon'ble Judges/Coram:

G.S. Patel, J.

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Whether executor of will can enter into contract contrary to terms of will?

A probate when granted binds the whole world. It is a judgment in rem. The Executor, therefore, has to administer the estate of the testator in terms of the Will and not on the basis of the settlement arrived at by and between the parties which would be inconsistent with the terms of the Will. In case of any conflict between the terms of the Will and the settlement, the former will prevail. The court, thus, in exercise of its jurisdiction under Section 302 of the Act can enforce only the terms of the Will and not the terms of the agreement.

18. The agreement although formed part of the terms of settlement, but it may only be held to be a collateral document. A purported agreement of family arrangement which in effect and substance is a development agreement cannot form the part of a decree granting probate.

 The effect of termination of such agreement entered into by and between the parties is required to be gone into in an independent suit and not in a proceeding under Section 302 of the Act. The testamentary court in exercise of its jurisdiction under Section 302 of the Act cannot enforce a contract qua contract; only because the Executor is a party thereto.

If the agreement was not a part of the Will, in our opinion, Section 302 will have no application.

23. It is not necessary for us also to go into the question in regard to the effect of delay in termination of the agreement. We must, however, make a distinction between the two functions of the respondent No. 1; one as an Executor of the Will and the other as a developer. Whereas his action as an Executor is subject to the direction of the testamentary court, his action as a developer is not. An Executor or a Trustee would not put him in such a position in which his personal interest and his duties under the Will come in conflict with each other. The testamentary court must give effect to the Will and not an agreement by and between the Executor and the third party, which would be contrary to the wishes of the testator.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6575 of 2008 (Arising out of SLP (Civil) No. 13488 of 2007)

Decided On: 07.11.2008

 Chandrabhai K. Bhoir  Vs  Krishna Arjun Bhoir and Ors.

Hon'ble Judges/Coram:

S.B. Sinha and Cyriac Joseph, JJ.

Citation: (2009) 2 SCC 315.

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When will executed without probate is not admissible in evidence?

 The Trial Court has, therefore, not erred in rejecting the application of the petitioner under Section 65 of the Evidence Act as the basic document namely; Will executed in Calcutta sans a probate is not admissible in evidence hence, its photostat copy/secondary evidence cannot be tendered in evidence.

IN THE HIGH COURT OF RAJASTHAN

S.B. Civil Writ No. 1263 of 2018

Decided On: 06.10.2018

Kamal Kumar  Vs. Ankit Kumar and Ors.

Hon'ble Judges/Coram:

Dinesh Mehta, J.

Citation: AIR 2019 Raj 19.

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