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Section 222: Probate only to appointed executor

Indian Succession Act • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1925
Section 221 All 391 Sections of Indian Succession Act Section 223

Legal Commentary & Landmark Judgments: Section 222

Section 222 establishes the exclusive qualification for probate, enacting that probate can be granted only to an executor appointed by the will, whether express or implied.

  • Core Legal Standard: Section 222 codifies the fundamental principle of testamentary confidence: probate is founded upon the personal trust reposed by the testator in their chosen fiduciary.
  • Sub-Section (1) Provision: Under sub-section (1), probate can be granted ONLY to an executor appointed by the will.

A court has no jurisdiction to grant probate to a beneficiary, family member, or creditor who is not named as an executor.

Under sub-section (2), the appointment may be express or by necessary implication (executor according to the tenor). An executor according to the tenor is created when the will, without using the word 'executor', imposes upon a designated person the essential fiduciary duties of an executor—such as collecting estate assets, paying testamentary debts and funeral expenses, and distributing the legacies. If no executor is appointed expressly or by tenor, the court cannot grant probate; it must grant letters of administration with the will annexed under Section 232.

Key Landmark Precedents:
  • Chiranjilal Shrilal Goenka v. Jasjit Singh, (1993) 2 SCC 507: The Supreme Court held that under Section 222, the Probate Court is bound to grant probate only to the executor appointed by the will. The court cannot appoint an administrator or third party as executor if an eligible executor is named.
  • Surinder Kumar v. Gian Chand, AIR 1957 SC 875: The Supreme Court affirmed that the executor appointed by the testator under Section 222 is the sole person entitled to represent the will in probate proceedings.
  • In the Goods of Bholanath Pal, AIR 1931 Cal 580: The court analyzed appointment by tenor under Section 222(2), holding that where an instrument directs a person to pay debts and manage the estate, they are an executor according to the tenor entitled to probate.
Legal Commentary:

Section 222 determines the exact procedural heading of the petition. If the petitioner is named as executor, they file for 'Probate' under Section 222 and 276. If the petitioner is a beneficiary but not an executor, filing for 'Probate' is fatal; they must file for 'Letters of Administration with the Will Annexed' under Section 232 and 278.

Section 221 All 391 Sections of Indian Succession Act Section 223