Probate, letters of administration and succession certificates - Family Law II - Mohammedan Law

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1. Definitions and the vesting of the estate
2. When probate or letters are compulsory
3. Probate
4. Letters of administration
5. Powers and duties of executors and administrators
6. Succession certificate (sections 370 to 390)
How this is examined

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Three documents, three purposes. Probate is granted to an executor named in a will and proves the will. Letters of administration are granted where there is no executor, with or without a will. A succession certificate is a limited, summary authority to collect debts and securities. Keep the three apart and most questions answer themselves.

1. Definitions and the vesting of the estate

Section 2 of the Indian Succession Act, 1925 defines probate as the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator; an executor as a person to whom the execution of the last will of a deceased person is, by the testator's appointment, confided; and an administrator as a person appointed by a competent authority to administer the estate of a deceased person when there is no executor.

Section 211: the executor or administrator is the legal representative of the deceased for all purposes, and all the property of the deceased vests in him as such. The executor's title comes from the will and exists from the death; probate only proves it. The administrator's title comes from the grant. Section 211(2) saves property that passes by survivorship where the deceased was a Hindu, Muslim, Buddhist, Sikh, Jaina or Parsi.

2. When probate or letters are compulsory

Section 212: no right to the property of an intestate can be established in a court unless letters of administration have first been granted. This does not apply to the intestacy of a Hindu, Muslim, Buddhist, Sikh, Jaina, Indian Christian or Parsi (section 212(2)).
Section 213: no right as executor or legatee can be established in a court unless probate, or letters of administration with the will annexed, has been granted. By section 213(2) this does not apply to wills made by Muslims or Indian Christians; it applies to wills of Hindus, Buddhists, Sikhs and Jainas only where they fall within section 57(a) and (b) (wills made in, or relating to immovables in, the old Bengal territory and the ordinary original civil jurisdiction of the Madras and Bombay High Courts), and to wills of Parsis on the same territorial basis.
Section 214: no court shall decree or execute against a debtor of a deceased person in favour of a person claiming on succession, except on production of probate, letters of administration or a succession certificate.

So for most testators in Karnataka probate is not compulsory, though it is often obtained because it is conclusive against everyone.

3. Probate

Section 222: probate is granted only to an executor appointed by the will, expressly or by necessary implication.
Section 223: probate cannot be granted to a minor or a person of unsound mind, or to an association of individuals other than a qualifying company.
Section 227: probate, once granted, establishes the will from the death of the testator and validates all intermediate acts of the executor.
Section 273: probate or letters are conclusive as to the representative title against all debtors of the deceased and all persons holding property of his, and afford full indemnity to those who pay or deliver in good faith.
Section 276: the petition annexes the will and states the date of death, that the writing is the last will, that it was duly executed, the value of the assets, and the petitioner's character as executor. Section 283 empowers the District Judge to issue citations to interested persons; section 284 permits caveats; once a caveat is entered and an affidavit filed, the matter becomes a contentious proceeding tried as a suit (section 295).
Section 263: a grant may be revoked for just cause: defective proceedings, fraud or concealment, an untrue allegation of an essential fact, the grant having become useless, or the grantee's wilful failure to file an inventory or account.
Section 299: an appeal lies to the High Court from the District Judge's orders.

The probate court decides only whether the will is genuine and duly executed; it does not decide title to property. In Chiranjilal Shrilal Goenka v. Jagjit Singh, 1993 INSC 102, (1993) 2 SCC 507, the Supreme Court held that the probate court has exclusive jurisdiction to grant or refuse probate, that its decision operates in rem, and that the question cannot be referred to arbitration.

4. Letters of administration

With the will annexed (section 232): where the will names no executor, or the executor is legally incapable, refuses, or has died, a universal or residuary legatee may be granted administration with the will annexed.
On intestacy: granted to the person entitled to the whole or part of the estate under the law of succession, typically the spouse or next of kin.
Limited grants: during the minority of an executor (section 244), pendente lite (section 247), limited to a suit (section 251), or to collection and preservation of the property (section 253).
Section 220: letters of administration entitle the administrator to all rights belonging to the intestate as effectually as if administration had been granted at the moment after his death.

5. Powers and duties of executors and administrators

Powers. Section 307: to dispose of the property vested in him, wholly or in part, as he thinks fit, subject (for Hindus, Muslims and certain others) to restrictions in the will and, for an administrator, to the court's permission for sale, mortgage or lease of immovable property beyond five years. Section 305: to sue on causes of action that survive the deceased. Section 311: where there are several executors, the powers of all may be exercised by any one who has proved, unless the will says otherwise.

Duties.

To arrange the funeral, in a manner suited to the deceased's station (section 316).
To file an inventory within six months and an account within one year of the grant (section 317); intentional default is an offence.
To collect the property and the debts owing to the deceased with reasonable diligence (section 319).
To pay funeral and administration expenses first (section 320), then wages for services rendered within three months before death (section 322), then other debts rateably (section 323), and debts before legacies (section 325).
To pay legacies and distribute the residue (section 366). General legacies abate rateably if the assets fall short (section 327).
An executor or administrator who misapplies the estate or neglects to collect it is personally liable for devastation (sections 368 and 369). Section 303 makes a person who intermeddles without authority an executor de son tort (of his own wrong), liable to the extent of the assets he takes.
The High Court may suspend or remove a private executor or administrator (section 301).

6. Succession certificate (sections 370 to 390)

Part X provides a summary procedure to give a person authority to collect the debts and securities of a deceased person. It does not cover immovable property.

Section 370: a certificate cannot be granted for any debt or security to which a right must be established by probate or letters under sections 212 or 213 (except, by the proviso, for the effects of an Indian Christian). “Security” includes promissory notes, debentures, shares and government securities.
Section 371: the application goes to the District Judge within whose jurisdiction the deceased ordinarily resided at death, or, failing that, where any of his property is found.
Section 372: the petition, verified like a plaint, states the time of death, the ordinary residence, the family and near relatives, the right in which the petitioner claims, the absence of any impediment, and the debts and securities claimed. A false averment is an offence.
Section 373: the judge fixes a hearing, gives notice, and decides the right summarily. If the questions are too intricate for summary decision, he may grant the certificate to the person who appears to have the best title.
Section 375: the judge may require security from the grantee.
Section 381: the certificate is conclusive as against the persons owing the debts or liable on the securities and gives them full indemnity for payments made in good faith to the holder.
Section 383: revocation on grounds similar to those in section 263.
Section 384: an appeal lies to the High Court; otherwise the order is final.
Section 387: no decision under Part X bars the trial of the same question of right in a regular suit, and the holder remains liable to account to the person lawfully entitled.
Section 388: the State Government may invest a court inferior to the District Judge with this jurisdiction.

Trap. A succession certificate is not proof of heirship or title. It protects the debtor who pays the holder and lets the holder sue for the debt (section 214), but by section 387 the true heir may still sue the holder in a regular suit. And it is for debts and securities only: a bank will accept it for a deposit, but it is no help in claiming a house.

How this is examined

Typical questions: “Distinguish probate from letters of administration”; “What is a succession certificate? Explain the procedure for its grant and its effect”; “Discuss the powers and duties of an executor.” Short notes are set on revocation of probate (section 263) or the executor de son tort. Quote section numbers; the sections in this note are the ones examiners look for.