Section 213 of the Indian Succession Act

Will is not required to be probated in case of certain communities

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.

(2) [[1]This section shall not apply in the case of wills made by Muhammadans, and shall only apply,

(i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the classes specified in clauses (a) and (b) of section 57; and

(ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962, (16 of 1962.) where such wills are made within the local limits of the [2][ordinary original civil jurisdiction] of the High Courts at Calcutta, Madras and Bombay, and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits.]

There are matters pending before various courts involving the question as to whether the will is required to be probated in case of Mohammadan and there are various litigating parties waiting in a queue for seeking appropriate order from the Court. It is a matter of common knowledge and experience that the matters reach upto the High Courts of different States. There are beneciaries, who do not know or confused over the subject. And it is, therefore thought it proper in the interest of litigating parties to state as to whether the will is required to be probated in case of Mohammadan or other classified communities under the Indian Succession Act. Sub Section 2 of Section 213 of the Indian Succession Act specifically lays down that the will is not required to be probated in case of Mohammadan.

Thus, the provision in a statute is very clear. In case of S.Mohammed Hanifa vs.Fathima Bivi, Honourable the Madras high Court had the occasion to consider the substantial question of law as to whether the will requires to be probated in case of Mohammadan. (Second Appeal 161 of 2006)

Challenging and impugning the judgments and decrees of the Courts below, the second appeal was filed on various grounds inter alia to the effect that the Courts below never considered the evidence properly and also the subsequent execution of the Gift Deed, but erroneously insisted upon the non probating of the 'Will'.

It was submitted that as per Section 213 of the Indian Succession Act, a 'Will' executed by a Mohammedan is not expected to be probated, however, the Courts below fell into error in not taking into account the said exception. The Honourable the Court observed that the Courts below failed to read Sub-Section (2) of Section 213 of the Indian Succession Act. They only took into consideration Sub-Section (1) of Section 213 of the Act.

Even a mere cursory reading of the above provision would highlight the fact that a 'Will' executed by a Mohammadan is exempted from being probated.But, the Courts below threw away the case of the plaintiff on the ground that the said 'Will' was not probated, warranting interference in second appeal.

Accordingly, the substantial question of law was answered to the effect that the Courts below fell into error in treating that Section 213 of the Indian Succession Act is applicable to a Mohammadan 'Will' when in fact Sub-Section (2) of Section 213 mandates that probating of a 'Will' executed by a Mohammadan is not required.

In view of the ratiocination adhered to above, the judgments and decrees of the Courts below were set aside and the matter was remanded to the trial Court for framing appropriate additional issues and after giving ample opportunity to both the parties to adduce additional oral and documentary evidence, keeping in view the current provisions of law.

Similarly, Bombay High Court observed that section 213 of the Indian Succession Act also puts restrictions upon executors and legatees of certain communities. There are no such restrictions upon Mohammedans. Hence, if an executor or a legatee of a Hindu seeks to execute a right under a Will, even if not executed in Mumbai (or any other metropolitan cities) or for properties not in Mumbai (or any other Metropolitan cities) he would have the restrictions upon him to probate the Will he propounds. There is no restriction upon Wills of Mohammedans under Section 213 also. The exception under Section 213 (2) inter alia upon Mohammedans gives them a facility to propound a Will which is not probated [3].

In that case, it was held that the defendant shall not require to obtain probate of the Will of her deceased husband. She shall be entitled to rely upon the writing of the deceased and prove the same as a document requiring attestation as required under the provisions contained in Sections 68 and 71 of the Indian Evidence Act and the special provisions of Section 63 of the Indian Succession Act applicable to the succession of the deceased, in this suit itself.

Similarly, when the probate is not required by the Indian Christian, the Company cannot insist for producing the copy of the probate. Such a question arose in case of Ashok Cherian Vs. ITC Limited (2005 128 Comp Cases 857 CLB); Let us survey what were the facts of that case and what has been held by the Company Law Board.

The petition was filed under Section 111 of the Indian Companies Act. The original holder of the shares expired. She survived by her son, the petitioner and a daughter. She had left a Will bequeathing all her movable and immovable properties in favour of the petitioner. On the basis of this Will, the petitioner applied to the Company for transmission of shares in his favour. Along with the application he had also enclosed (i) Certified copy of the death certificate of Mrs. P.V. Cherian (ii) Certified copy of the Will of late Mrs. P.V. Cherian (iii) Certified copy of the Legal Heir ship Certificate issued by the Office of the Tahsildar in favour of Daughter and the Petitioner. (iv) No-objection letter from Daughter, one of the 2 legal heirs, for transmission of the concerned shares solely in favour of other legal heir, Dr. Ashok Cherian, i.e. the petitioner herein. (v) Original Share Certificates in respect of the concerned shares.

The company had sought for certain additional documents including a copy of the Probate. While the petitioner furnished all the documents sought for by the Company, he did not furnish the certified copy of the Probate on the ground that in terms of Section 213(2) of the Indian Succession Act, there is no need to obtain a Probate in case a Will made by Indian Christian. However, since the Company is insisting on furnishing of a copy of the Probate, the petitioner filed the petition.

Petitioner reiterated the submissions made in the petition and urged that the stand of the company that the petitioner should produce a copy of the Probate was against the provisions of Section 213 of the Indian Succession Act. He further submitted that all the documents including the no objection certificate from the sister of the petitioner have been supplied to the Company and as such the Company cannot have any objection in transmitting the impugned shares in favour of the petitioner. He also undertook to give an indemnity bond, if so directed.

In the reply filed by the Company, it is stated that it is unable to transmit the impugned shares in favour of the petitioner in the absence of Probate of the Will or letter of administration or succession certificate issued by competent court in favour of the petitioner, as the number of shares involved is very large. However, it has also submitted in the reply that the Company shall abide by any order passed by this Board.

The Company did not produce a copy of its Articles to find out whether the board of the Company has powers to refuse transmission and if so, on what grounds. It is on record that the petitioner has furnished all the information sought for by the Company except a copy of the Probate. As rightly pointed out by the petitioner, in terms of Section 213(2) of the Indian Succession Act, there is no need to obtain a Probate in case of a Will made by an Indian Christian and obviously the deceased was an Indian Christian. The Company cannot seek probate of a Will which is not legally necessary to obtain. In the present case, as per the legal heirship certificate issued by the Tahsildar, there are only two surviving legal heirs viz., the petitioner and his sister. The sister has given a no objection certificate for transmission of the impugned shares in favour of the petitioner. The Will executed by the deceased clearly indicates that on her demise all her movable and immovable properties would vest in the petitioner. A similar case was considered by this Board in Khurshid Alam vs. P. Pagnon Co. Pvt. Ltd. (108 Company Cases 523). In that case, the deceased had left a Will bequeathing his shares to his son and on the basis of the Will his son applied for transmission of the shares in his favour along with no objection letters from other legal heirs of the deceased. The Company sought for a Probate or letter of administration. Company Law Board directed the company to register the transmission without a probate, as all the legal heirs had given no objection. Similarly, in the present case also, since the sister of the petitioner is the only other legal heir of the deceased and she has given no objection in transmitting the shares in favour of the petitioner, the Company is not justified in asking for a copy of the Probate, which even otherwise is not necessary in terms of Section 213(2) of the Indian Succession Act.

Under the circumstances, the said Company was directed to register the transmission of the impugned shares in favour of the petitioner within a month from the date of the order. The Company was also directed to pay to the petitioner all the dividend that accrued on the impugned shares and also deliver bonus shares, if any, to the petitioner.

The position is clear in view of the provisions in the statute and under the judgments of the Courts.

Hemang D. Rana

Senior Advocate

Email: corporatearmour@gmail.com 

[1] Substituted by Act 16 of 1962, Section 2, for"or Jaina". Substituted by Section 3, ibid. for"or Indian Christian". Substituted by Act 3 of 1951, Section 3 and Schedule for"the States".Substituted by Act 16 of 1962, Section 4, for sub- section (2).

[2] Substituted by Act 52 of 1964, Section 3 and Schedule II, for"ordinary civil jurisdiction".

[3] BilquisZakiuddinBandookwala, Review Petition NO: 41 of 2010 in Suit NO: 2510 of 2008 High Court of Bombay on its Original Side.