Registered Will - is probate must

It is well settle  that no probate is required  in the state of Delhi. In a recent authority reported in AIR 2006 Delhi, it was held that a person has a right to set up a will even in collateral proceedings and there is no need of obtaining probate.

However, there is no restrictions, one can probate a will in Delhi also.

 Please clarify. If no probate is required, why the petition for probate will be entertained increasing the workload of courts?

My unmarried uncle (Parsi) expired with an Unregistered Will appointing me as an Executor and beneficiary.  He had no surviving immediate relatives and he was living with me.   There was no immovable property and not much of other assets except for some Fixed deposits, small balance in the bank account and some debentures.    The Will was not registered and was kept with the Advocate who had prepared the Will, being our family friend.   I have not probated the Will and I have not had any issues for transmission of FDs/debentures.   Now I have sent some shares (which were a result of conversion of debentures and were in his single name) to one of the companies for transmission.  At the time of request for transmission, I had provided the Share Transfer Agent with copies of death certificate, Will and the share certificates.  They sent me a whole lot of formalities to be completed (Indemnities, Affidavits, Sureties and other documents on stamp paper, notarized, etc.), which I have completed and returned to the Share Transfer Agent.  Now the Share Transfer Agent has returned all the papers insisting on a Probate.   The number of shares and its value is very small (less than Rs.1lakh).  I am wondering is this request for a Probate from the Share Transfer Agent/Company valid.  I understand from the other posts that a Probate is not mandatory since there is no immovable property involved here.  How can I explain to the Company to complete the transmission of shares in my name based on the indemnities, affidavits submitted to them.  Any advice from our learned experience forum is welcome.

"Dilnavaz" :
 

1. The court cannot pass probate orders on an  "unregistered will".   If the court passes any such order then it will mean that the court has by-passed the registration process, (registration acts) registration of which is mandatorily required in case of immovable properties.

2.  An unregistered will has no legal value, when the matter reaches the court.

3.  In the present instance, since the unregistered will favours you as  "beneficiary"  and most importantly as "EXECUTOR,  and by virtue of this executory authority,  YOU have automatic right to approach the civil side of the HC and apply for  "succession certificate"  SPECIFICALLY for all of the movable assets, as classifed in the unregistered will.   IF there are no objections / interventions by any other legal heir or who-so-ever,  then the court will grant you succession certificate.   Legally, you may THEN use this succession certificate to deal in all the specific movable assets, as you wish.

4.  THERE is no "legal" point in Probating the Will,  "IF"  there is no  immovable properties (land, building, flat, taj-mahal, etc... ).  Tentatively the approximate cost for obtaining a "succession certificate"  would go upto 50,000/- (all inclusive) plus approx. 9 - 24 months

Keep Smiling .... Hemant Agarwal

Probate for will is must in law. but for collateral purpose it can be used without probate, for which will can be proved according to the procedure laid down in section 68 of Indian Evidence Act. The mutation entry of KHATA does not create any rights. It is only for the collection of revenues. But if will is without probate it has no sanctity and Court will ignore the will while deciding the question of title. 

for the dispute in between landlord and tenant will can be considered without probate only to determine that after death of testator who will be the landlord to recover rent from the tenant.

How exemption has been granted to Rajasthan and Delhi that probate of will is not required when in other parts of the country it is needed?

NO  it is not required to probate a will in A.P

Sirs How abt in Madras is a Probate Required for a unregistered will regarding a Only House.....

MY MOTHER LEFT WILL (WILL MADE IN MUMBAI -WE ARE 5 SISTERS AND 1 BROTHER)

WILL WAS MADE IN 2004 MOTHER DIED IN 2005

MY SISTER TRANSFERRED IMMOVABLE PROPERTY IN MY BROTHERS NAME WITHOUT PROBATING THE WILL .

TILL DATE SHE HAS NOT GIVEN ME A COPY OF THE WILL

PLEASE TELL ME MY OPTIONS

KIREN SHAH

Dear

KIREN SHAH

Pl confirm how daugters and how many sons

Please send the comlete citation whether its a Delhi high court decision or Supreme Court decision with names of parties and date of decision,if possible. I'll be obliged. Ashok

Kindly provide details of relevant law or notificaiton etc. under which exemption is granted in state of Rajasthan from obtaining probate of a will as stated in your reply/ answer.

hi, 

    My 1st question " is a registered will requires probate in Uttar Pradesh ?

second Question . in the Registered will of Late mother  two rooms de marked on the map ( attached with registered will ) were given to my elder brother , but it is clearly written in the will that he ( my brother) can not sale or rent out these two rooms to any firm/ person. He ( my  brother) may leave these two rooms in my favor after taking Rs. two lakhs from me.

The said property is Mortgage with a nationalised bank against a cash and credit limit of a business firm of which i am the owner and Propiertor  , now after a the death of my mother Bank wants a legal opinion about the registered WILL dated 9. 3 1999 . ( The one and the only registered WILL ).

kindly advice after the death of my mother who will be eligible for creating a valid and enforceable Mortgage to the Bank and the documents required for creating a valid mortgage.

Thanking you

your truly 

RAJENDRA KUMAR 

JHANSI- Uttar Pradesh

Respected Sirs,

I have seen Respected sir Makkar opinion at below thread:

https://www.lawyersclubindia.com/experts/Is-it-necessary-to-Get-Probate-of-a-Will-In-Rajasthan--58796.asp#.VI0BDdKUdr0

Yes. It is mandatory in Rajasthan even.

Whereas Respected sir s.subramanian  has opined at below thread:

https://www.lawyersclubindia.com/experts/Probate-of-Will-131021.asp#.VIzZetKUdr0

dear Bretheren,

I beg pardon for this belated reply. first of all,I would like to clarify that probating of wills is not compulsory at all under Sec.57 of the Indian Succession Act,if they are executed outside the limits of the original civil jurisdiction of the High Courts of Madras and Mumbai and West Bengal. So,if a will is executed in the places abovesaid the need for probating the same will arise. this has been explained very well in the judgment of the Supreme Court of India in Clarence Pais Vs Union of India (AIR 2001 S.C. 1151). A combined readng of Sec.57 and 213 of the Indian Succession Act would show that where the parties to the will are Hindus or the properties are not in territories falling under Sec.57 (a) and (b),Sec.213(2) applies and Sec.213(1) has no application. As a consequence,a probate will not be required to be obtained by a Hindu in respect of a will made outside those territories.
With the amendment brought to the Indian Succession Act,1925 by the Indian Succession(Amendment )Act,2002 Act 26 of 2002 which came into effect on 27.5.2002, the wills executed by Indian Christians have also been taken outside the purview of Sec.213 of the IS Act. Hence there is no need for probating the wills of Muslims and Indian Christians. With regard to Hindus also the need for probate is limited to the areas set otu in Sec.57 of IS Act. Hope I clarified the issue.
thanks
S.Subramanian.

Opinion at this thread by Respected sir Sh Hemant Agrawal :

4.  The issue of  "Probate"  is a state law  AND in some states, the state govt's have exempted the  probation of "will" (eg. rajasthan).  However all the "presidency towns" of India, have to compulsorily  "probate"  the will for execution purposes (eg. Bombay, Delhi, Madras, Calcutta etc...)

So please after reconsidering, guide whether it is mandatory or not to get will probated in Rajasthan.