Amendement to Indian Succession Act – A Step Backwards
Amendement to Indian Succession Act – A Step Backwards
In essence, the Act trades upfront judicial finality for potential procedural simplicity but introduces systemic risks of back-loaded litigation and increased burden on individuals to ensure wills are robust enough to withstand future challenges
A. INTRODUCTION
The Repealing and Amending Act, 2025 was notified on December 21, 2025, after receiving Presidential assent on December 20, 2025. This legislation introduced significant amendments to the Indian Succession Act, 1925, primarily to remove discriminatory colonial-era requirements.
B. APPLICABILITY OF PROBATE
In India, probate became compulsory for establishing rights as an executor or legatee under a WILL through Section 2131 of the Indian Succession Act, 1925, which came into force on September 1, 1926. This provision mandated court-granted probate (or letters of administration with the will annexed) before enforcing will-based claims in court, applying fully to Christians, Parsis, and Jews, and partially to Hindus, Buddhists, Sikhs, or Jains for certain privileged wills or immovable property in presidency towns.
Under Section 572 of the Indian Succession Act, 1925, probate was compulsory for Hindus (and Buddhists, Sikhs, Jains) in respect of wills executed within the territories of the former Bombay Presidency (modern states: Maharashtra and Gujarat) or the local limits of the ordinary original civil jurisdiction of the High Courts of Madras (Tamil Nadu) and Calcutta (West Bengal). This applied to establishing executor or legatee rights in court, regardless of the property’s location, until the repeal of Section 2133 in 2025.
C. KEY PROVISIONS OF SECTION 213
Requirement for Probate: According to Section 213(1)4, no executor or legatee can have rights in any court of competent jurisdiction in India has granted probate of the will under which the right is claimed
Historically, Section 213 made probate (court validation of a will) or letters of administration essential to enforce will-based inheritance rights in court, especially for non-Hindus and select Hindu wills.
(1) CORE LEGAL ANALYSIS
(i) Nature of the Provision: Section 2135 is classified as procedural, not substantive. It does not create or destroy rights; it merely regulates how those rights are proven in a court of justice.
(ii) Establishment of Rights: The bar under Section 2136 only applies when a person seeks to “establish” their right in court. It does not prevent the right from vesting in the legatee immediately upon the testator’s death.
(iii) The “Collateral Purpose” Distinction: Courts have traditionally allowed unprobated wills to be used for “collateral purposes” (e.g., as evidence of a testator’s intention to disinherit someone) but not to establish a title or claim to the estate.
(2) EXEMPTIONS AND APPLICABILITY
(i) Muslims and Indian Christians: These groups are generally exempted from the mandate of Section 2137 by virtue of Section 213(2). Indian Christians were included in this exemption through the Amendment Act of 2002.
(ii) Geographic Limits: Outside of the formerly mandatory Presidency towns (and now even within them due to 2025 updates), probate is not a prerequisite for filing a suit for most Indian citizens.
(3) KEY JUDICIAL PRECEDENTS
(i) Clarence Pais v. Union of India8: The Supreme Court upheld the constitutionality of Section 213, ruling that the requirement was not discriminatory against Christians as it was based on historical and geographical reasons rather than religion.
(ii) Hem Nolini Judah v. Isolyne Sarojbashini Bose9: Reinforced that an unprobated will cannot be used in probate proceedings or to establish executor rights.
(iii) Kanta Yadav v. Om Prakash Yadav10: Confirmed that probate is not mandatory for wills in regions like Delhi, where Section 5711 of the Act does not apply.
D. IMPLICATIONS
By requiring probate or letters of administration, section 21312 safeguards the rights of heirs and beneficiaries, ensuring that only duly authorized representatives can manage the estates of the deceased.
Section 21313 of the Indian Succession Act, 1925, is a crucial legal provision that regulates the establishment of rights for executors and legatees, ensuring proper legal authority and protection for the interests of the heirs and beneficiaries.
E. KEY AMENDMENTS TO THE INDIAN SUCCESSION ACT, 1925
(1) OMISSION OF SECTION 213
The most notable change is the complete omission of Section 21314. This section previously mandated that Hindus, Buddhists, Sikhs, Jains, and Parsis must obtain a probate or letters of administration from a court to establish their rights under a Will if the Will was made in (or related to property in) the metropolitan areas of Bombay, Calcutta, or Madras. Historically, Section 21315 made probate (court validation of a will) or letters of administration essential to enforce will-based inheritance rights in court, especially for non-Hindus and select Hindu wills. Post-Amendment: Executors and legatees can now directly assert rights under a will without court probate, unless challenged (e.g., in disputes over validity). This applies to Wills executed after December 20, 2025.
(2) AMENDMENT OF SECTION 370
(i) The Act modified Section 37016 to align it with the omission of Section 21317. Specifically Sub-section (1) now only refers to establishing rights by “letters of administration” removing the reference to “probate” linked to the defunct Section 21318
(ii) Clause (b) of sub-section (2), which was considered an obsolete colonial relic, has been omitted. Consequential Changes to Section 3: In section 3, sub-section (1), the figures “213” has been omitted
(3) SAVINGS CLAUSE
Under Section 419 of the Amending Act, the changes do not affect any rights, liabilities, or legal proceedings already initiated before the repeal took effect. Section 420 of India’s Repealing and Amending Act, 2025 is a crucial “savings clause,” ensuring that the repeal of old, obsolete, or redundant “Amendment Acts” doesn’t affect existing rights, liabilities, legal proceedings, or consequences from actions taken under those old laws; it’s a standard legal practice to prevent chaos, clarifying that the principal laws like the Indian Succession Act after amendment remain intact, while only the redundant amendment laws are formally removed from the statute books.
By including the savings clause, it means that its effects are prospective:
(i) Pending Cases: All probate applications filed before December 20, 2025, will continue to be governed by the old law.
(ii) Existing Probates: Already granted probates and letters of administration remain fully valid and unchanged in their legal effect.
(F) IMPACT OF THE CHANGE
(1) REDUCED PROCEDURAL BURDEN
Legatees and beneficiaries are no longer legally forced to undergo the time-consuming and expensive probate process to prove the validity of a WILL in former presidency towns
(2) LEGAL EQUALITY
The amendment removes a distinction that was seen as discriminatory, as other religious communities (like Muslims) were not subject to the same mandatory probate requirement
(3) SHIFT TO LETTERS OF ADMINISTRATION
For contested or complex estates, letters of administration (simpler than probate) suffice to administer assets, even for testate (will-based) succession.
(G) CRITICISMS & CONCERNS
(1) Loss of Early Judicial Scrutiny - Removing mandatory probate eliminates the initial court verification of a will’s authenticity and the testator’s mental capacity.
(2) Risk of Fraud and Disputes - Critics argue this could lead to a rise in forged wills, multiple conflicting wills, and title disputes, as there is no longer a proactive legal filter.
(3) Institutional Verification Challenges - Without probate, entities like cooperative housing societies or banks may struggle to verify the legitimacy of a will, potentially leading to increased administrative hurdles during property transfers.
(4) Strategic Vulnerability - While probate is no longer mandatory, it remains a voluntary option. Lawyers still recommend it for complex or large estates to prevent future challenges.
(5) Increased Disputes - Removing mandatory probate leaves wills vulnerable to future challenges, as their authenticity isn’t judicially confirmed, potentially leading to more litigation.
(6) Title Uncertainty - Makes it harder to establish clear property titles, as the will’s validity isn’t officially proven, affecting future sales or transfers.
(7) Risk of Fraud - Without court scrutiny, forged wills or multiple wills could be more easily acted upon, harming rightful beneficiaries.
(8) Loss of Safeguard - Probate provided finality and a robust defence against claims; its absence removes this critical protection.
(H) PROPOSED SOLUTIONS
(1) Extend Probate: Instead of abolishing it, critics suggest extending mandatory probate to all communities to achieve true uniformity and clarity, rather than removing the system altogether.
(2) Proposal: Retired Judges for Probate Matters
Further, retired judges should head and decide probate matters is not an amendment within the Repealing and Amending Act, 2025, but rather a separate idea related to judicial efficiency and dispute resolution.
The Act focuses on removing a procedural hurdle and modernizing the statute book, not on altering the structure of the judiciary or designating specific types of judges for succession cases. By involving retired judges, their expertise and experience could streamline the non-mandatory, probate process, potentially reducing the burden on existing courts and offering a faster resolution for families who still seek judicial validation.
However, current law empowers existing courts of competent jurisdiction to grant voluntary probate, and the Act aims to promote alternative, less formal methods of asset transfer, such as consent or indemnity bonds.
Ultimately, while the Act simplifies inheritance by making probate optional, the user’s suggestion points to a broader concern about managing potential disputes and the need for efficient judicial mechanisms in a post-amendment landscape.
(I) CONCLUSION - In essence, the Act trades upfront judicial finality for potential procedural simplicity but introduces systemic risks of back-loaded litigation and increased burden on individuals to ensure wills are robust enough to withstand future challenges.
Disclaimer – The views expressed in this article are the personal views of the author and are purely informative in nature.
(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, or 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 (16 of 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 immoveable property situated within those limits
2. 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.
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8. (2001) 4 SCC 325
9. AIR 1962 SC 1471
10. AIR 2019 SC 5556
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15. Supra N 1
16. Restriction on grant of certificates under this Part.—
(1) A succession certificate (hereinafter in this Part referred to as a certificate) shall not be granted under this Part with respect to any debt or security to which a right is required by section 212 or section 213 to be established by letters of administration or probate:
Provided that nothing contained in this section shall be deemed to prevent the grant of a certificate to any person claiming to be entitled to the effects of a deceased Indian Christian, or to any part thereof, with respect to any debt or security, by reason that a right thereto can be established by letters of administration under this Act.
For the purposes of this Part, “security” means—
(a) any promissory note, debenture, stock or other security of the Central Government or of a State Government;
(b) any bond, debenture, or annuity charged by Act of Parliament of the United Kingdom on the revenues of India;
(c) any stock or debenture of, or share in, a company or other incorporated institution;
(d) any debenture or other security for money issued by, or on behalf of, a local authority;
(e) any other security which the State Government may, by notification in the Official Gazette, declare to be a security for the purposes of this Part.
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19. The repeal by this Act of any enactment shall not affect any other enactment in which the repealed enactment has been applied, incorporated or referred to; and this 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.
20. Ibid
