Report No. 110
III. Establishment of Right to Property of Deceased
34.16. Section 212.-
Section 212(1) provides that no right to any part of the property of a person who dies intestate can he established in any court of justice unless letters of administration have first been granted by a court of competent jurisdiction. Sub-section (2) provides that this section shall not apply in the case of intestacy of a Hindu, Mohammedan, Buddhist, Sikh, Jain, Indian Christian or Parsee.
The section needs no change.
34.17. Section 213-Establishment of title, 'executor'.-
Section 213 provides that before title (as an executor) can be established, probate of the will must be obtained. There seems to be some uncertainty as to whether, in cases where probate is not obtained, (though required by the section), the provisions of the section merely bar the passing of a decree on the basis of a right claimed under the will, or whether they bar the very institution of the suit to enforce that right.
The Madras and Patna High Courts take the former view1, namely, only the passing of the decree is prohibited. The Andhra and Calcutta High Courts2 take the latter view, namely, the very institution of the suit is barred. It should be noted that in the case of an executor, the title depends on the will, and not on the probate. Probate is needed only to prove title3.
1. (a) Ramchand (in re:), AIR 1956 Mad 274 (276).
(b) Bhude v. Chandra X. Bhishakar, AIR 1942 Pat 120.
2. (a) Venkata Subramaniam v. Andhra Bank, AIR 1960 AP 273 (280).
(b) Bibhuti Bhusan v. Narendra, AIR 1951 Cal 228.
3. Meyappa v. Subrainanian, AIR 1916 PC 202 (204).
34.18. Recommendation to amend section 213.-
Whatever be the correct construction of the present wording of section 213, it seems to us that on practical considerations it is desirable to adopt the former view1, which would bar only the passing of a decree. It reflects a less technical approach than the contrary view. We therefore recommend that section 213 should be amended by providing that where probate has not been obtained, what is barred is only the passing of a decree, and not the institution of a suit.
1. Para. 34.17, supra.
2. Compare section 214(1)(a).
34.18A. Section 213-exclusion of Indian Christians-recommendations.-
It has been represented to us, in one of the comments received on the Working Paper1 that while Hindus and Muslims can get relief from the court on the basis of a will, Christians have to get a probate or letters of administration for getting relief on the basis of a will. It has been suggested in that communication that Christians should be excluded from section 213.
This is a suggestion forwarded to us along with the letter of the Catholic Bishop's Conference of India. We accept the suggestion, though the point was not contained in our Working Papers. We recommend that (a) section 213 should be amended as above; and (b) consequential changes be made, wherever necessary, in other sections of the Act.
1. Letter of the Catholic Bishops Conference of India, dated 3rd October, 1984.