Probate for will
Dr.Gaurang N. Gandhi
(Querist) 23 February 2013
This query is : Resolved
sir,
A made a will containing some immovable properties. among that properties one immovable property is situated at Mumbai and others at kalol(GUJARAT). he died at Mumbai.
Question is that can the executor file a petition for probate in Kalol S.D. court for whole properties or he has to file a separate petition in Mumbai?
The executor had filed petition for probate at Kalol S.D. Court now the Kalol court refused to give probate on the ground that he has no power to give probate of the properties situated in Mumbai.
Is it fair?
Is there any ruling that shows either court has power to entertain the probate application for whole properties?
Please Guide me.....
Advocate M.Bhadra
(Expert) 23 February 2013
The Probate case should be filed in the Court of District Judge or District Delegate Court in Mumbai as because it is last residing of the testator(deceased),the property which may be situated at anywhere in India.
Anirudh
(Expert) 23 February 2013
Section 270 and 271 of the Indian Succession Act, are applicable to the matter.
Section 270 reads as under:
"270. When probate or administration may be granted by District Judge.- Probate of the will or letters of administration to the estate of a deceased person may be granted by a District Judge under the seal of his Court, if it appears by a petition, verified as hereinafter provided, of the person applying for the same that the testator or intestate, as the case may be, at the time of his decease had a fixed place of abode, or any property, moveable or immoveable, within the jurisdiction of the Judge.
Thus, for entertaining an application of probate by the District Court is the following:
(i) the deceased at the time of his death had a fixed place of abode; or
(ii) any property - moveable or immovable
within the jurisdiction of the District Court.
Thus, if any one of the two conditions (i) or (ii) are met, the District Court will have jurisdiction to grant the Probate of the Will.
In the instant case while condition (i) is not fulfilled, condition (ii) is fulfilled. Therefore, the District Court at Kalol could not have said that it had no jurisdiction.
However, the above provision is held to be subject to the provision of Section 271.
Section 271 reads as under:
"271. Disposal of application made to Judge of district in which deceased had no fixed abode.- When the application is made to the Judge of a district in which the deceased had no fixed abode at the time of his death, it shall be in the discretion of the Judge to refuse the application, if in his judgment it could be disposed of more justly or conveniently in another district, or, where the application is for letters of administration, to grant them absolutely, or limited to the property within his own jurisdiction."
Under this Section, when between Courts of different districts there is a question as to which of such courts can most justly or conveniently grant probate, the Judge has a discretion to refer the applicant to the more convenient Court. (It is wrong to think that the District Judge at Kalol has no jurisdiction at all. But the District Judge has exercised his discretion against the Applicant.)
No appeal lies against an order refusing to entertain an application under this Section.
The High Court will not interfere in revision with the discretion exercised by the District Judge Kalol. the reason is an exercise of discretion is not a matter to be interfered with in appeal and therefore much less in revision petition.
In view of the foregoing, you would be advised to approach the appropriate Court in Bombay(Mumbai).
ajay sethi
(Expert) 17 March 2013
you will have to file for probate in bombay high court
