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7. ``Section 213 of the Indian Succession Act, 1925 (hereinafter referred to as "the Act") says that no right as executor or legatee can be established in any Court unless a Court of competent jurisdiction has granted probate of the Will under which the right is claimed or has granted Letters of Administration in respect of the Will. Section 213 of the Act was amended by adding the words "Indian Christians" after the word "Mohammedans" with a view to providing that in case of Wills executed by Christians also, the requirement under Section 213(1) of the Act is not necessary. The purpose of the State Amendment made to the Act, as stated above, is to avoid the cumbersome procedure of obtaining probate or Letters of Administration in respect of the Will executed by Christians for the purpose of establishing right under the Will when such right is sought to be asserted in proceedings in Court. The prohibition under Section 213 of the Act is regarding establishing any right under the Will without getting probate or Letters of Administration and that section cannot be understood as one by which the vesting of right as per the provisions of the Will is postponed until the obtaining of probate or Letters of Administration. The Will will take effect on the death of the executant of the Will and what Section 213 of the Act says is that the right as executor or legatee can be established in any Court of justice only if Probate or Letters of Administration is obtained.

Company Appeal (AT) (CH) Nos. 43 & 45 of 2022

8. Amendment to Section 213 of the Act cannot be said to be an amendment which has retrospective operation. Cases in which the bar under Section 213 of the Act is not there, execution of the Will can be proved in proceedings in which the right as executor or legatee is sought to be established. The necessity to obtain Probate or Letters of Administration as provided in Section 213(1) of the Act arises only when right as executor or legatee is sought to be established in a Court and hence that Section does not prohibit the use of the Will which is unprobated as evidence for purposes other than establishment or right as executor or legatee. So, the requirement of obtaining probate becomes relevant at the time when the establishment or right as executor or legatee on the strength of a Will is sought to be made in a Court of justice. Irrespective of the fact whether a Suit is filed before or after the amendment to Section 213 of the Act if execution of the Will sought to be relied on in judicial proceedings is attempted to be proved after the amendment, it cannot be said that in cases covered by Section 213 of the Act in respect of Christians, the Will must be one in respect of which probate has been granted. Obtaining of probate in respect of a Will can also be for purposes other than the purpose for which it is not necessary to get a probate and for that reason also it cannot be said that after the amendment to Section 213 of the Act, there is no need for granting probate, or Letters of Administration.

68. Section 213 of the Indian Succession Act, 1925, `Right as executor or legatee when established', enjoins (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'.

69. Section 214 of the Indian Succession Act, 1925, under the head, `Proof of representative title a condition precedent to recovery through the Courts of debts from debtors of deceased persons'.-- (1) `No Court shall-- (a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, or (b) proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt, except on the production, by the person so claiming of-- (i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased, or (ii) a certificate granted under section 31 or Company Appeal (AT) (CH) Nos. 43 & 45 of 2022 section 32 of the Administrator-General's Act, 1913 (3 of 1913), and having the debt mentioned therein, or (iii) a succession certificate granted under Part X and having the debt specified therein, or (iv) a certificate granted under the Succession Certificate Act, 1889 (7 of 1889), or (v) a certificate granted under Bombay Regulation No. VIII of 1827, and, if granted after the first day of May, 1889, having the debt specified therein.' (2) `The word "debt" in sub-section (1) includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes.'

Provided that, when any certificate is superseded under this section, all payments made to the holder of such certificate in ignorance of such supersession shall be held good against claims under the probate or letters of administration.

71. Section 216 of the Indian Succession Act, 1925, `Grantee of probate or administration alone to sue, etc., until same revoked', provides that -- `After any grant of probate or letters of administration, no other than the person to whom the same may have been granted shall have power to sue or prosecute any suit, or otherwise act as representative of the deceased, throughout the State in which the same may have been granted, until such probate or letters of administration has or have been recalled or revoked'.