The Indian Succession Act, 1925 is enacted to consolidate the law applicable to intestate and testamentary succession.
DEFINITION:-
Section 2(f) defines the word "probate" to mean the copy of a will certified under the seal of a Court of a competent jurisdiction with a grant of administration to the estate of the testator.
Section 2(h) defines the word "will" to mean the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.
Part VI deals with testamentary succession. Section 59 refers to persons capable of making wills. Section 61 inter alia states that a will obtained by fraud, coercion or undue influence which takes away the volition of a free and capable testator, is void. Under section 63, every will is required to be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will.
Section 211 falls in Part VIII which deals with representative title to the property of the deceased on succession. Section 211(1) declares that the executor or the administrator, as the case may be, of a deceased person is his legal representative for all purposes and that all the property of the deceased vests in him, as such. Under section 212, it is inter alia provided that no right to any property of a person who has died intestate can be established in any Court, unless letters of administration are granted by a probate Court.
RIGHT OF EXECUTOR OR LEGATEE:-
Under section 213, no right as an executor or a legatee can be established in any Court, unless probate of the will is granted, by the Probate Court, under which the right is claimed. Similarly, no right as executor or legatee can be established in any Court unless the competent Court grants letters of administration with the will annexed thereto.
Sections 211, 212 and 213 brings out a dichotomy between an executor and an administrator. They indicate that the property shall vest in the executor by virtue of the will whereas the property will vest in the administrator by virtue of the grant of the letters of administration by the Court. These sections indicate that an executor is the creature of the will whereas an administrator derives all his rights from the grant of letters of administration by the Court. Section 214 states inter alia that no debt owing to a deceased testator can be recovered through the Court except by the holder of probate or letters of administration or succession certificate. Section 216 inter alia lays down that after any grant of probate or letters of administration, no person other than such grantee shall have power to sue or otherwise act as a representative of the deceased, until such probate or letters of administration is recalled or revoked. Part IX of the Act deals with probate, letters of administration and administration of assets of deceased. Under section 218(1), if the deceased is a Hindu, having died intestate, administration of his estate may be granted to any person who, according to the rules for the distribution of the estate applicable to such deceased, would be entitled to. Under section 218(2), when several such persons apply for letters of administration, it shall be in the discretion of the Court to grant letters of administration to any one or more of such persons. Section 220 refers to effect of letters of administration. It inter alia states that letters of administration entitles the administrator to all rights belonging to the intestate. Section 221 inter alia states that letters of administration shall not render valid any intermediate acts of the administrator which acts diminish or damage the estate of the intestate. Sections 218, 219, 220 and 221 are relevant in the present case as they indicate that nothing prevented the intestate heirs of Balai Chand to apply for letters of administration, particularly when they alleged that Balai Chand died without making a will. Moreover, section 221 indicates that intermediate acts of the administrator which damage or diminish the estate are not validated. This section brings out the difference between letters of administration and probate. Section 221 expressly states that certain intermediate acts of the administrator are not protected as the authority of the administrator flows from the grant by the competent court unlike vesting of the property in the executor under the will (see: section 211). Section 222 states that probate shall be granted only to an executor appointed by the will.
EFFECT OF PROBATE AND LETTER OF ADMINISTRATION:-
Section 227 deals with effect of probate. It lays down that probate of a will when granted establishes the will from the date of the death of the testator and renders valid all intermediate acts of the executor. Section 227 is, therefore, different from section 221. As stated above, in the case of letters of administration, intermediate acts of the grantee are not protected whereas in the case of probate, all such acts are treated as valid. Further, section 227 states that a probate proves the will right from the date of the death of the testator and consequently all intermediate acts are rendered valid. It indicates that probate operates prospectively. It protects all intermediate acts of the executor as long as they are compatible with the administration of the estate. Therefore, section 221 read with section 227 brings out the distinction between the executor and holder of letters of administration; that the executor is a creature of the will; that he derives his authority from the will whereas the administrator derives his authority only from the date of the grant in his favor by the Court. Section 235 inter alia states that letters of administration with the will annexed shall not be granted to any legatee, other than universal or residuary legatee, until a citation has been issued and published calling on the next-of-kin to accept or refuse letters of administration. Such provision is not there in respect of grant of probate.
REVOCATION OF GRANT OF PROBATE AND LETTER OF ADMINISTRATION:-
Chapter IV of part IX deals with practice in the matter of granting and revoking probates and letters of administration. Section 273 inter alia states that a probate or letters of administration shall have effect over all the properties and estate of the deceased and shall be conclusive as to the representative title against all debtors of the deceased and against all persons holding the property of the deceased and shall afford full indemnity to all debtors discharging their debts and to persons delivering up such property to the grantee. Section 278 states that every application for letters of administration shall be made by a petition in the prescribed form. Section 297 inter alia states that when a grant of probate is revoked, all payments bona fide made to an executor under such grant before revocation shall be a legal discharge to the person making payment. Under section 307, an executor or an administrator has the power to dispose of the property of the deceased, vested in him under section 211, either wholly or in part, in such manner as he may think fit. This section brings out the distinction between vesting of the estate in the executor under section 211 and his power of disposition. Section 317 refers to duties of an executor or an administrator to file statement of account and inventory periodically. To complete the title in favour of the legatee, under section 332, an assent of the executor is contemplated. This section shows that the revocation of the grant operates prospectively. It completes acts of disposition on the assent being granted. Section 332 further indicates that the property vests in the executor under the will from the date of demise of the testator; that the executor can dispose of the property and that on the assent of the executor, the title of the legatee under the will is completed. Therefore, section 332 makes it clear that revocation of the grant of the probate shall operate prospectively and not retrospectively.