Section 213: Right as executor or legatee when established

Indian Succession Act • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1925

Legal Commentary & Landmark Judgments: Section 213

Section 213 codifies the celebrated rule governing the necessity of probate, enacting that no right as executor or legatee can be established in any court unless probate or letters of administration with the will annexed have been granted, subject to crucial territorial limits.

  • Core Legal Standard: Section 213 is one of the most critical and heavily litigated provisions in Indian property law.
  • Sub-Section (1): Justice: Under sub-section (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 or letters of administration with the will annexed.

Crucially, sub-section (2) read with Section 57 strictly restricts this mandatory probate requirement. In the case of wills made by Hindus, Buddhists, Sikhs, or Jainas, Section 213 applies ONLY if:
(a) The will was made within the territories of the ordinary original civil jurisdiction of the High Courts of Bombay, Madras, or Calcutta; OR
(b) The will relates to immovable property situated within those territories, even if executed elsewhere.
Outside these historic Presidency town territories (e.g., in Delhi, Punjab, UP, Bihar, Madhya Pradesh, Kerala, etc.), probate is NOT mandatory for Hindu wills. A Hindu legatee in Delhi can establish their title in a civil court based on the original will without obtaining probate.

Key Landmark Precedents:
  • Clarence Pais v. Union of India, (2001) 4 SCC 325: The Supreme Court upheld the constitutional validity of Section 213 under Article 14, affirming that the historical classification requiring probate for wills executed in Presidency towns or affecting properties therein is constitutionally sound. The Court clarified that outside those territories, probate is not mandatory for Hindus.
  • Keventer Agro Ltd. v. Seemant Cowshish, AIR 2001 SC 2621: The Supreme Court confirmed that a suit to establish rights under a will in Delhi does not require probate under Section 213, as Delhi is outside the territories specified in Section 57.
  • Minaxiben Shashikant Patel v. District Collector, Gandhinagar, AIR 2007 Guj 85: The Gujarat High Court confirmed that in Gujarat and other non-Presidency areas, probate is optional for Hindu wills, and revenue authorities cannot insist upon probate before mutating property in the legatee's name.
Legal Commentary:

Section 213 is the single most misunderstood provision in Indian conveyancing. Municipal authorities, banks, and registrars across North and West India routinely refuse to mutate property without probate. Counsel must educate authorities using *Clarence Pais* and *Keventer Agro*: unless the property is situated in the Presidency towns of Mumbai, Chennai, or Kolkata, probate is NOT mandatory for Hindu wills! However, for Indian Christians, Parliament amended Section 213(2) in 2002 to exempt Christian wills from mandatory probate as well.