Breaking Tradition And End Of The Long-Standing Requirement For Obtaining Probate Of Wills - Omission Of Section 213 Of The Indian Succession Act, 1925

Introduction

The right of an executor or legatee only gets established after a court of competent jurisdiction has granted probate of the will under which the right is claimed. This was the longstanding position under Section 213 of the Indian Succession Act, 1925 (Succession Act) which mandated probate for Hindu, Sikh, Buddhist and Jain in relation to immoveable property lying within the territorial jurisdiction of Calcutta, Madras (now Chennai), and Bombay.

On 20 December 2025, the Repealing and Amendment Act, 2025 (Amending Act), containing certain key amendments to the Succession Act received Presidential assent. Among other amendments, Section 213 of the Succession Act was repealed, thus doing away with the requirement of obtaining probate which used to be earlier mandatory under law. The Amending Act clarifies that repeal is prospective and does not impact the validity/invalidity or the rights and obligations already acquired or incurred before the repeal.

Section 2(f) of the Succession Act defines "probate" as a copy of a will certified under the seal of a court of competent jurisdiction, together with a grant of administration of the estate of the testator. Prior to repeal, Section 213 mandated that the right of an executor or legatee under a will, could be established only upon the grant of probate by a court of competent jurisdiction in respect of the will on which such right was founded. The contentious part was the latter part of the provision which was applicable only to Hindus, Buddhists, Sikhs, and Jains, where wills were made for immovable properties lying within the ordinary original civil jurisdiction of the High Courts of Calcutta, Madras, and Bombay.

The repeal of Section 213 of Succession Act was long overdue. The Law Commission in its Report No. 209 of July 2008 had proposed the repeal of Section 213 which was aimed at removing discrimination and achieving uniformity in the law applicable to any citizen. The repealed provision applied to persons belonging to particular religions only and was restricted to immovable assets falling within the jurisdiction of three courts only. It was therefore observed that Section 213 was violative of Article 15 of the Constitution, as it resulted in discrimination on the grounds of religion or caste.

Impact of repeal of Section 213 of Succession Act and challenges

The repeal of Section 213 of Succession Act simplifies the succession laws in Calcutta, Madras (now Chennai), and Bombay. The process of obtaining probate was lengthy and cumbersome. It required the executor or legatee to file a probate application before the competent court, which was followed by publication of notice, waiting period for objections to the will, and, in the event of any objection, a full-fledged trial used to take place. This process entailed considerable time and substantial costs. The omission of Section 213 simplifies the procedure for enforcing testamentary rights, promotes uniformity of process among religions, and eliminates scope of discrimination, which is imperative in a country characterised by religious diversity.

While the repeal is a welcome change, it also beckons some operational challenges and consequences. With the repeal, judicial scrutiny in enforcement of testamentary rights, which was earlier available to safeguard the rights of an executor, is no longer available. The probate process ensured clear title for the property left behind by the testator as the process was overseen by courts. With the present shift in law, the executor may face challenges in proving the genuineness of the will and unforeseen complications if the title of the property is challenged by a third-party at a later stage.

Calcutta, Bombay, and Chennai are old metropolitan cities having several high-value properties in prime locations. The removal of the probate process and consequent judicial scrutiny may give rise to instances of forging wills and documents concerning the properties.

The practice of obtaining probate was prevalent and used to be followed routinely in Calcutta, Bombay, and Chennai and was a means of obtaining clear tittle to properties of the testator. Financial institutions and local governing bodies such as the housing societies relied upon probates as proof of clear tittle to properties. The repeal will now compel financial institutions and local governing bodies to rely on other documents to prove title to properties.

Executors who have already initiated probate proceedings will have to decide whether to wait for the final outcome of those proceedings, which is likely to take time and entail costs, or withdraw the proceedings as obtaining probate is no longer mandatory. Guidance from the High Courts or the Supreme Court may be needed on the impact of repeal of Section 213 of Succession Act on pending probate proceedings in courts.

Conclusion

The process of obtaining probate is not novel. In fact, many other territories outside India (such as United Kingdom, USA, Singapore) continue to mandate the requirement of obtaining probate as it serves as a valid legal mechanism for authorising the executor to administer a testator's estate. The impact of complete omission of such a provision remains to be tested. It is debatable whether an amendment to Section 213 of Succession Act, making it uniformly applicable to all persons in India, irrespective of their religion and application to territories, would have been a better approach. However, considering the objective of achieving equality enshrined under Article 15 of the Constitution, and the directive state principle mandating states to secure a Uniform Civil Code throughout India (Article 44 of Constitution), the repeal of Section 213 appears to be in line with the constitutional ethos and is a progressive step.

Any change in law brings with it practical challenges in implementation. These challenges are gradually addressed through the evolving approaches of courts and necessary amendments, ultimately ensuring that the intent and purpose of the law are preserved for the benefit of society at large. This approach squarely applies to the repeal of Section 213 of Succession Act which will be tested on the anvil of time.