SECTION 213 of Indian Succession Act 1925: Its
repealing and effEct
The
section 213 of Indian Succession Act 1925 stands repealed by the Repealing and Amending
act of 2025. The doing away with the section 213 of Indian Succession Act was
felt desirable due to multiple courts as shall be conspicuous from the discussion
hereinbelow.
The
broad line of succession in case of the deceased dying intestate is by way of
executing a Will by appointing executor and there may be instances, when,
though, Will was executed, but, no
executor was appointed, then a petitioner seeking rights arising out of a Will
may prefer petition for Letter of Administration. In case executor is named in
a Will, then, the petition for probate was required to be filed as per law. The
Will, is not required to be registered as per mandate of law, however, it is
always recommended that Will should be registered. It is significant to point
out that barring certain areas, in India, the probate or letter of
administration in order to prove Will was felt necessary. It is no longer so.
In view of amendment in the Indian Succession Act 1925 vide a Repealing and
Amending Act 2025. The Repealing Act 2025 has repealed 71 obsolete acts as enumerated
in the first schedule, whereas in the
second schedule the amendments are carried out in four foundational statutes and
it is specified as to what provisions of the Act are repealed. The Indian
Succession Act 1925, features in the second schedule while listing out the amendment
in section 213 of Indian Succession Act. It received presidential assent on
December 25th 2025
The
probate of a Will was compulsory in presidency town of Calcutta, Madra and
Bombay and also elsewhere. In Delhi, the probate to Will is not mandatory. The amendment
in section 213 of Indian Succession Act 1925 carried out in December 2025 shall
have its effect in transactions based on Will shall now become easier. The
stumbling block caused has therefore eased, in as much as alienation based on
Will was not generally permitted and probate to even registered Will was being
insisted. The process, to that extent has smoothened. However, it is not to be
construed, that doing away with the requirement of probate in section 213 shall
have completely negated the requirement of probate of Will. It is not so, the
courts, still, shall have to adjudicate the conflicting claim of rival parties
and either the probate or letter of administration to the Will, as the case may
be or declaration through courts of law to the effect of veracity of Will or
declaration shall be necessary in such conflicting cases. The significance of
the amendment , however, could be gauged from the fact that, generally, even in
a routine transaction where no inherent disputes found to have existed, the
insistence on probate was still a norm, as indicated, however, that shall no
longer be the case.
THE
REPEALING AND AMENDING ACT, 2025 No. 37 of 2025 has received presidential
assent on the 20th day of December 2025 and is published for general
information in the gazette.
It
is made clear in the notification that the repeal by the above Act shall not
affect any other enactment in which the repealed enactment has been applied,
incorporated or referred to; and the Act shall not affect the validity,
invalidity, effect or consequences of anything already done or suffered, or any
right, title, obligation or liability already acquired, accrued or incurred, or
any remedy or proceeding in respect thereof, or any release or discharge of or
from any debt, penalty, obligation, liability, claim or demand, or any
indemnity already granted, or the proof of any past act or thing; nor shall
this Act affect any principle or rule of law, or established jurisdiction, form
or course of pleading, practice or procedure, or existing usage, custom, privilege,
restriction, exemption, office or appointment, notwithstanding that the same
respectively may have been in any manner affirmed or recognised or derived by,
in or from any enactment hereby repealed; nor shall the repeal by this Act of
any enactment revive or restore any jurisdiction, office, custom, liability,
right, title, privilege, restriction, exemption, usage, practice, procedure or
other matter or thing not now existing or in force.
The
dimension also is the payment of stamp duty, for instance, even in a routine
case, if the probate or letter of administration was to be obtained from the
Courts of law, 4% stamp duty on the instrument was payable. By implication,
though, apart from causing needless complexities, the stamp duty was payable,
when no actual transfer was being affected and it was felt, that, needless
burden were being fastened on the transferee, besides overburdened court docket
were to deal with such cases, which, in essence could be avoidable. Even in
case of letting out the place for rent as a commercial space or for any reason
whatsoever, the lessee insisted on such requisitions, thereby, the commercial
wheel of the nation was also being
impeded for such requisition and hence, it was felt to do away with that.
Section
213 of Indian Succession Act stipulates that unless a probate or letter of
administration in respect of Will is obtained, the right of legatee to a Will
cannot be established. The provision for mandatory probate applies for Hindus,
Sikhs, Buddhists and Parsis. It was particularly so, if :
The
Wills are executed within the original civil jurisdiction of the High Court of
Calcutta, Madras and Bombay;
The
Wills are made outside the original civil jurisdiction of Calcutta, Madras and
Bombay, but immovable properties are situated within the jurisdiction of the
above cities.
For
ready reference, the section 213 of Indian Succession Act 1925 ( now repealed)
are reproduced hereinunder:
213.
(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.
(2)
This section shall not apply in the case of wills made by Muhammadans or Indian
Christians, and shall only apply—
(i)
in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such
wills are of the classes specified in clauses (a) and (b) of section 57; and
(ii)
in the case of wills made by any Parsi dying, after the commencement of the
Indian Succession (Amendment) Act, 1962, where such wills are made within the
local limits of the ordinary-original civil jurisdiction of the High Courts at
Calcutta, Madras and Bombay, and where such wills are made outside those
limits, in so far as they relate to immovable property situate within those
limits.
The
provisions as contained in section 213 of Indian Succession act 1925 was
perceived as discriminatory, since, no such fetter is attracted in respect of Wills
made by Muslims and Christians. Therefore, doing away with mandatory
requirement of probate as per section 213 of Indian Succession Act 1925, in essence, shall restore parity.
As
indicated above, however, dispensing of probate altogether in a complex case
shall not aid the parties. Strategically, it may be prudent to obtain probate
of a Will from a competent court of law, so as to obviate any future risk
against any prospective claims. Moreover, the amendment shall have prospective
applicability and this shall not relate back to the probate already obtained and/or
rights, liabilities already accrued or incurred and in case of the ongoing proceedings.
Whereas
the first schedule has contained the Acts repealed being obsolete, the second schedule
contained the amendments carried out in the acts. The Second Schedule of Repealing
and Amending Act 2025 relating to amendments carried out in the following Acts,
including in the Indian Succession Act 1925 and the same are illustrated below
for ready reference:
THE SECOND SCHEDULE
(See section 3)
AMENDMENTS
Year
Act No. Short Title Amendments
1 2 3 4
1897 10 The General Clauses Act, 1897 In section 27, for the words
“registered
post”, words “speed post with registration” shall be substituted.
1908.
5 The Code of Civil Procedure, 1908. In section 27, for the
words
“registered post”, words “speed post with registration” shall be substituted.
(i) In section 148A, in sub-section (2), for the words “registered post,
acknowledgement due”, the words “speed post with registration and proof of
delivery” shall be substituted; (ii) In the First Schedule, in order V, rule
9,–– (a) in sub-rule (3), for the words “registered post acknowledgement due,
addressed to the defendant or his agent empowered to accept the service or by
speed post”, the words “speed post with registration and proof of delivery
addressed to the defendant or his agent empowered to accept the service” shall
be substituted; (b) in sub-rule (4), the brackets and words “(except by
registered post acknowledgment due)” shall be omitted; (c) in sub-rule (5), in
the proviso, for the words “registered post acknowledgement due, the
declaration referred to in this sub-rule shall be made notwithstanding the fact
that the acknowledgement”, the words “speed post with registration and proof of
delivery, the declaration referred to in this sub-rule shall be made
notwithstanding the fact that the proof of delivery” shall be substituted;
(iii) In order XXI, in rule 1, in sub-rule (2), for the words “registered post,
acknowledgement due”, the words “speed post with registration and proof of
delivery” shall be substituted; and (iv) In order XXXIX, in rule 3, in the
proviso, in clause (a), for the words “registered post”, the words “speed post
with registration” shall be substituted.
1925 39
The Indian Succession Act 1925 (i) In section 3, in sub-
section
(1), the figures “, 213” shall be omitted; (ii) section 213 shall be omitted;
(iii) in section 370,–– (a) in sub-section (1), for the words and figures “or
section 213 to be established by letters of administration or probate”, the
words “to be established by letters of administration” shall be substituted;
(b) in sub-section (2), clause (b) shall be omitted.
2005
53 The Indian Act, Disaster Management
Act, 2005 In section 30, in sub-
Section
(2), in clause (vi), for the word “prevention”, the word “preparation” shall be
substituted.
The
amendment in Indian Succession Act was necessitated, in view of difficulty
being faced in ordinary walks of life. In many co-operative societies, wherein
for transfer of rights after the death of allottee the Will was not being
accepted and probate and letter of administration from the competent courts of
law were being insisted and in so many bona fide transfers the procedure
hassles caused bottlenecks and needless petitions before the courts of law.
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Anil K Khaware
Founder & Senior associate
Societylawandjustice.com
