Wednesday, August 30, 2023

CERTIFICATE OF PROBATE/LETTER OF ADMINISTRATION & TERRITORIAL JURISDICTION

 


Certificate of Probate/Letter of Administration & Territorial jurisdiction

The vast number of civil cases related to properties based on testamentary matters. The matter of inheritance shall be governed by Indian Succession Act, in such an event. However, if the death occurs intestate i.e without leaving any Will, then the ordinary mode of inheritance as per The Hindu Succession Act 1956 (as amended and up to date) or as per the law of inheritance of other religion shall follow. The very purpose of writing this article, is to address to a situation, where petition for probate and /or Letter of Administration  of the estate of deceased, who left behind a Will is filed and order of probate/Letter of Administration in respect of a Will is also granted. However, before issuing certificate another aspect emerges i.e territorial jurisdiction of District Judge in respect of such properties as mentioned in the Will, which is situated outside the state or outside the territorial limit of such District Court. Clearly, probate/Letter of administration is granted to the Will and thereafter the aspect of issuing certificate shall follow. It is of pertinence that the order of grant of probate/letter of administration shall be judicial work, whereas issuing of Certificate shall be ministerial work. Still, the ministerial work shall be of importance in as much as valuation of properties mentioned in the Will has to be ascertained from proper channel and court fee/non judicial stamp paper will have to be procured for issuing certificate of probate/letter of administration and it will be at that stage that even territorial jurisdiction of all other properties mentioned in the Will shall be of further relevance.

One may be amused as regards after grant of probate/letter of administration, how is that the aspect of territorial jurisdiction could emerge. It is because, at the time of instituting petition for seeking Probate or letter of Administration, it is sufficient that the deceased had place of abode within the territorial limit of such District Court and/ or any one property i.e moveable or immovable should fall within the territorial limit of such District Court. In such a situation there is no embargo as regards entertaining the petition and grant of probate/letter of administration of the impugned will. However, a Will may also include other properties moveable or immoveable and that may be situated outside the state. In such an event certificate of probate/letter of administration cannot be issued by a District Court in respect of such properties situated outside the territorial limit of such District Courts. Whether such fetter shall be attached to High Court also as regards the properties contained in the Will which is situated outside the state shall be deliberated later. Suffice to say, that, The Indian Succession Act 1925 itself provides the answer in this regard and that shall be delineated little later.

At the very anvil, the petitioner shall have the option as per the provisions of Indian Succession Act 1925 to approach District Judge or concerned High Court, since as per the Act both High Court and District Court shall have concurrent jurisdiction. Though, as may turn out, the jurisdiction of District Court shall be circumscribed after granting of probate/letter of Administration and cannot traverse beyond its territorial limit, unless the value of such properties outside the territorial limit of such court does not exceed Rs 10,000/-.

The broad questions, thus, emerges are as under:

(A)        Whether after granting of probate or letter of administration in respect of the Will, certificate can be issued in respect of such moveable or immoveable properties situated outside the state by a District Court?

(B)        If the answer to the question (1) is “No”, whether such certificate can be issued by High Court?

(C)        If the answer to question (2) is yes, what are the rational of it and/or judicial precedents in this regard?

It is therefore necessary to analyse the aforesaid issue in a bigger canvas. At the cost of repetition it is pointed out that the issue of territorial jurisdiction in respect of such additional properties as per the Will, falling outside the State, shall only emerge after the order of grant of probate/letter of administration and while issuing certificate.





PROVISIONS OF INDIAN SUCCESSION ACT 1925

The Indian Succession Act, 1925 is divided into 11 parts, with some of the parts sub−divided into several chapters. Part VI of the Act comprising of 23 Chapters, contains exhaustive provisions relating to “Testamentary Succession”.

Sections 57 to 191 of the Act are included in this Part.  Part IX of the Act contains Sections 217 to 369, divided into 13 chapters. Chapter IV of Part IX contains provisions governing “the practice in granting and revoking probates and letters of administration.” Sections 264 to 302 are found in this Chapter.

The procedure for making an application for probate or for letters of administration with the Will annexed, is provided in Section 276.

264. Jurisdiction of District Judge in granting and revoking probates, etc.—

 (1) The District Judge shall have jurisdiction in granting and revoking probates and letters of administration in all cases within his district.

(2) Except in cases to which section 57 applies, no Court in any local area beyond the limits of the towns of Calcutta, Madras and Bombay, shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, receive applications for probate or letters of administration until the State Government has, by a notification in the Official Gazette, authorised it so to do.”

 

The bare perusal of sub−section (2) of Section 264 shall reveal that it imposes a bar upon the Courts in any local area beyond the limits of the towns of Calcutta, Madras and Bombay, from receiving applications for probate or letters of administration, until the State Government, by a notification in the Official Gazette, authorized them so to do, wherever the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person. But the bar under Sub−section (2) has no application to cases, to which Section 57 applies.

Section 57 of the act reads as under:

57. Application of certain provisions of Part to a class of Wills made by Hindus, etc.—

The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply—

(a) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant−Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and

(b) to all such Wills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limits; and

(c) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b):] Provided that marriage shall not revoke any such Will or codicil.”

The relevant provision regarding territorial jurisdiction is section 270 of the Indian Succession Act which 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 interested as the case may be, at the time of his decease had a fixed place of abode, or any property, moveable or immovable, within the jurisdiction of the Judge.

 

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 gram them absolutely, or limited to the property within his own jurisdiction.

It is therefore clear that in order that a court may have territorial jurisdiction, the deceased should have either a fixed place of abode or moveable or immovable property within its jurisdiction.

According to section 300 of the Indian Succession Act, the High Court shall have concurrent Jurisdiction with the District Judge in the exercise of all powers which are conferred by the Act on the District Judge. The aforesaid jurisdiction of High Court is subject to sub-section (2) which reads as under :

 

300.Concurrent jurisdiction of High Court-

(1) The High Court shall have concurrent jurisdiction with the District Judge in the exercise of all the powers hereby conferred upon the District Judge.

(2)  Except in cases to which section 57 applies, no High Court, in exercise of the concurrent jurisdiction hereby conferred over any local area beyond the limits of the towns of Calcutta. Madras and Bombay, shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jains or an exempted person, receive applications for probate or letters of administration until the State Government has by a notification in the Official Gazette, authorised it so to do."

 

It may be noted that this sub-section (2) does not apply where section 57 of the Act applies. This is clear from the very starting words. According to clause (c) of Section 57, the said provision is applicable to all Hindus, Buddhists, Sikhs and Jains after first January 1927. That means that the restriction contained in sub-section (2) of Section 300 of the Act applies only to Muhammadans and exempted persons.

273. Conclusiveness of probate or letters of administration. -Probate or letters of administration shall have effect over all the property and estate' moveable or immovable, of the deceased, throughout the State in which the same is or are granted and shall be conclusive as to the representative title against all debtors of the deceased and all persons holding property which belongs to him, and shall afford indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate or administration have been granted: Provided that probates and letters of administration granted-

(A) by a High Court, or (B) by a District Judge, where the deceased at the time of his death had a fixed place of abode situate within the jurisdiction of such Judge, and such Judge certifies that the value of the property and estate affected beyond the limits of the State does not exceed ten thousand rupees, shall unless otherwise directed by the grant, have like effect throughout the other States."

Section 273 of the Act contains the provisions that notwithstanding concurrent jurisdiction of District Judge and High Court, provisions of Section 273 do not keep them at par. These provisions make the probate or letters of administration issued by the High Court conclusive even in respect of property situated throughout India but they limit in operation such conclusiveness in respect of probates or letters of administration issued by District Judge.



                                                  LAW

 

In Kanta vs State And Anr  AIR 1985 Delhi 453 the Delhi High court has held in para 20  that:

“20. Section 273 of the Act does not deal with the jurisdiction of the High Court or the District Judge to entertain and decide a petition for grant of letters of administration or probate. That provision only deals with the effect and binding force of grant of letters of administration or probate by the High Court or the District Judge. It has nothing to do with the territorial Jurisdiction. The territorial jurisdiction is dealt with by sections 270, 271, and 300 of the Act which have been referred to already. Had the intention of the legislature been that section 273 of the Act, would deal with the territorial jurisdiction also, there was hardly any necessity of enacting sections 270, 271 and 300 of the Act. Therefore, on harmonious construction of sections 270, 271, 273 and 300 of the Act it is clear that section 273 has nothing to do with the territorial jurisdiction and it only deals with the binding force or effect of the letters of administration and probate issued by a High Court or District Judge”.

Before, narrating on the aspect further, it may be worthwhile to refer to a recent Supreme Court Judgment reported as Narender Nath Agarwal Vs Yogender Nath Agarwal & Ors 2021 (2) SCALE 627. The Supreme Court has clarified all such aspects as regards the territorial jurisdiction of District Court and High Court in no uncertain terms. The following judgments/precedents are also analysed by the Supreme Court in this context:

(1)  Ishwardeo Narain Singh vs Kamla Devi & Ors AIR 1954 SC 280

(2)  Chiranji al Shrilal Goenka Vs jasjit Singh & Ors (1993) 2 SCC 507

(3) T. Venkata Narayana & Ors Vs Venkata Subbamma (Smt) (Dead) & Ors (1996) 4 SCC 457

(4)  Balbir Singh Wasu Vs Lakhbir Singh & Ors (1985) 1 SCC 144

(5)  Nirmala Devi Vs Arun Kumar Gupta (2005) 12 SCC 505

(6) Smt Rukmani Devi & Ors Vs Narender Lal Gupta (1985) 1 SCC 144

 A cumulative reading of Sections 57, 213 and 264 would show: (i) that a person claiming to be an executor or legatee under a Will cannot rely upon the Will, in any proceeding before a Court of justice, unless he has obtained probate (if an executor has been appointed) or letters of administration with the Will annexed, if such a Will has been executed by certain classes of persons; and (ii) that the jurisdiction to grant probate or letters of administration vests only in courts located within the towns of Calcutta, Madras or Bombay and the Courts in any local area notified by the State Government in the Official Gazette.

Therefore, what follows is that:

(i) unless, the testator belongs to  any of the classes of persons specified in the Act; and

(ii) unless, the Will is made or some of the properties covered by the Will are located, within the local limits of a notified area, there is no necessity for an executor or a legatee under a Will to seek probate or letters of administration.

By virtue of Section 213(2) (i) read with Clauses (a) and (b) of Section 57, the mandatory requirement to seek probate or letters of administration for establishing a right as executor or legatee under a Will, is applicable only to Wills made by a Hindu, Buddhist, Sikh or Jaina within the local limits of the ordinary original civil jurisdiction of certain High Courts and to Wills made outside those territories, to the extent they cover immovable property situate within those territories. Therefore, there is no prohibition for a person whose case falls outside the purview of these provisions, from producing, relying upon and claiming a right under a Will, in any proceeding instituted by others including the other legal heirs for partition or other reliefs.

In view of Proviso (b) to Section 273, letters of administration granted by a District Court cannot have validity in respect of a property located outside the State, if its value exceeds Rs. 10,000/−. No such fetter is however attached to High Court. However, this problem can be resolved by ordering the transfer of the testamentary case to the High Court and ordering the transfer of the partition suit from the District Court back to the High Court.

To set at rest any ambiguity it may be worthwhile to reproduce para no. 48 of Ravinder Nath Agarwal (Supra):

46. In so far as second transfer petition is concerned, the relief sought therein is to transfer the testamentary case pending in the High Court of Uttrakhand to the District Court, Saket, Delhi. Since, the Will set up by the petitioner covers properties located both in Nainital and Delhi, both these courts have concurrent jurisdiction. But in view of proviso (b) to section 273, letters of administration granted by a District Court cannot have validity in respect of property located outside the state, if its value exceeds Rs 10,000/-. However, this problem can be resolved by ordering the transfer of testamentary case to the High Court of Delhi and ordering the transfer of the partition suit from the District Court Saket back to the High Court of Delhi.”

                                       CONCLUSION

Thus, a petition for probate/Letter of Administration in respect of a Will left behind by a testator can be preferred in the District Court within the jurisdiction of that the deceased last resided and/or at least one immoveable/moveable property is situated. The petition can be filed in High Court as well, in the very first instance in view of concurrent jurisdiction. The order of probate/Letter of Administration is granted in respect of the Will, however, subsequent to that certificate is required to be issued and the jurisdiction of District Court is truncated in respect of such properties of the Will situated outside the territorial limits of such District Court or the properties situated outside the state. However, as illustrated no such embargo or inhibition applies to a High Court and a High Court can issue certificate in respect of any other properties of the Will in respect whereof petition for probate/Letter of Administration is preferred, even if  situated outside the state as well. In Ravinder Nath Agarwal (Supra) the same is emphatically held by hon’ble Supreme Court while interpreting sections 264, 273 and section 300 of Indian Succession Act 1925 itself and by analyzing the judgments/precedents in this regard.  

                                               ------------

                                       Anil K Khaware

Advocate

Founder & Senior Associate

Societylawandjustice.com

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