A probate is a certificate granted by the court in respect of a Will, which proves the validity of the Will and grants rights to the executor to administer the estate of the deceased testator in the manner set out in the Will. Post the demise of the testator, the executors named in the Will can apply to the jurisdictional court to seek a probate to establish the authenticity of the Will.

Not all Wills mandatorily require a grant of probate in India. Whether a Will mandatorily requires a probate depends on the religion of the deceased testator and the jurisdiction with which the Will has nexus. This article discusses the legal requirement of probate in Delhi and adjoining National Capital Regions of Noida and Gurugram (Gurgaon), in respect of Wills made by Hindus.

Meaning of ‘mandatory probate’

The legal framework relating to probate of Wills made by Hindus in India is set out in the Indian Succession Act, 1925 (ISA).

The ISA provides for certain circumstances (as explained later) in which a probate is regarded as ‘mandatory’. However, the term ‘mandatory’ is a misnomer, in that the ISA does not provide that the Will would be invalid if it is not probated; instead, the Will is regarded as valid (unless proved to be invalid[1]), but an executor or legatee under a Will which is not probated will not be able to establish their right as such.

In other words, executors may deal with the testator’s properties as per the Will and transfer the title to the legatees in respect of such properties, but the title is complete only when the probate is obtained.[2] In case mandatory probate is not required, then the completion of title of the executor or legatee in respect of properties bequeathed by Will is not subject to grant of probate.

The reference to ‘mandatory probate’ in this article is to be understood in that context.

When is probate mandatory

As noted above, the ISA sets out certain circumstances in which a probate would be mandatory. These circumstances are:

(i) If the Will was made in Kolkata or Chennai (Madras) or Mumbai (Bombay); or

(ii) If the Will was made outside those territories, but relates to immoveable property situated within those territories.

Thus, probate is not mandatory in case the Will is made outside Kolkata, Chennai or Mumbai, and does not deal with immovable property in Kolkata, Chennai or Mumbai.

Accordingly, if the Will is made by a Hindu in Delhi, Noida or Gurgaon and does not deal with immovable property in Kolkata, Chennai or Mumbai, then probate of such Will would not be mandatory under the ISA.

This position is supported by numerous judgments. In Clarence Pais and Ors. v. Union of India[3], the deceased held immovable property in Delhi. In this connection, the Supreme Court of India has inter alia observed that no probate would be required as the Will was made by a Hindu outside the territories covered under the ISA (i.e. Kolkata, Chennai or Mumbai). This was reiterated in Harvinder Singh and Ors. v. Ranjit Kaur and Ors.[4], by the Delhi High Court.

Noida falls within the state of Uttar Pradesh. In Fazalur Rehman v. Gopal Sahu[5], the Allahabad High Court has held that obtaining of probate is not mandatory for a Will in respect of property located within the State of Uttar Pradesh. The court relied on an old judgment in Nobat Ram v. Gayatri Devi[6],  for this observation.

Similarly, Gurugram (Gurgaon) is located in the state of Haryana. In Joginder Pal v. Indian Red Cross Society and Ors.[7], the Supreme Court has affirmed that “it is not necessary to apply for letters of administration or probate in the States of Punjab and Haryana.

Applying voluntarily

Although it is not mandatory to obtain probate of a Will in Delhi and adjoining National Capital Regions of Noida and Gurgaon as above, an executor may voluntarily apply for a probate. While obtaining probate in these regions is not common, it is occasionally prompted by certain regulatory authorities, banks or other institutions insisting on production of a probated Will in order to recognise the claims of legal heirs. Executors are also well advised to seek probate of the Will, even when not mandatory, before dealing with the testator’s property if they anticipate a challenge to the validity of the Will, as a grant of probate authenticates the Will and is conclusive as to its due execution and validity.

[1]        The validity of the Will may of course be assailed on grounds such as incapacity of the testator, undue influence on the testator, Will being a forgery, etc.

[2]        S. Parthasarathy Aiyar v. M. Subbaraya Gramany and Anr, AIR 1924 Mad 67; Mohamed Salman Noorani v. Radhika Bhargava, 2014 (6) BomCR 379.

[3]        (2001) 4 SCC 325.

[4]        2011 SCC OnLine 257.

[5]        2016 (117) ALR 135.

[6]        1968 ALJ 69.

[7]        AIR 2000 SC 3279.