What is a Probate

A Probate means certification of the copy of a Will under the seal of a court
having jurisdiction thereof. It is an instrument that bestows a right of
administration to the estate of a testator.
As per the Section 222 of the Indian Succession Act, 1925, a probate is
granted only to the executor and no other person, if such person is not
named either expressly or impliedly in the Will. Such a person cannot make
an application for obtaining a grant of probate of the Will.
Section 213(1) makes it a requisite for every legatee or executor to acquire
a probate of the Will or Letter of Administration with the Will prior to
execution of the Will for creating any right in a court of law about the
subject matter of the concerned Will and any estate stated therewith.
In other words, an executor or the legatee can only complete their
obligations in disposition of the deceased estate, when they duly obtain a
Probate/Letter of Administration from a court of competent jurisdiction.
The Will which is required to be probated as per the provisions of the Indian
Succession Act, 1925, if not probated, has no legality and cannot be
enforced.
The Hon’ble Supreme Court in Chiranjilal Shrilal Goenka vs. Jasjit Singh
and others held in the following words:
“… the only issue in a probate proceeding relates to the genuineness and
due execution of the Will and the court itself is under a duty to determine it
and preserve the original Will in its custody. The Succession Act is a self-
contained code in so far as the question of making an application for
probate, grant or refusal of probate or an appeal carried against the
decision of the probate court. This is manifested in the fascicule of the
provision of Act. The probate proceedings shall be conducted by the
probate court in the manner prescribed in the Act and no other ways. The
grant of probate with a copy of the Will annexed establishes conclusively as
to the appointment of the executor and the valid execution of the will. Thus,
it does no more than establish the factum of the will and the legal character
of the executor. The Probate court does not decide any question, of title or
of the existence of the property itself.”
Limitation for filing an application for probate
There isn’t a specified time limit for the grant of probate. In case the estate
is in the possession of the administrator the question of the probate does
not arise. The probate is conclusive only concerning the authenticity of the
Will submitted before a Court.
However, Art 137 of the Limitations Act, 1963 states that limitation for
making an application for which no specified time is prescribed in the
particular act is three years.
This provision was emphasised by the Hon’ble Supreme Court in the case
of Kunvarjeet Singh Khandpur v. Kirandeep Kaur & Ors., and Kerala State
Electricity Board, Trivandrum v. T.P. Kunhaliumma.

Reasons Probate Is Necessary

A probate is necessary in case no Will is executed. Probate helps to
determine the beneficiaries and to apportion the deceased’s assets and
title in the property.
In cases where a valid Will exists, a probate is required for the assets of an
estate (other than the smaller estates) to be appropriately disseminated to
the termed beneficiaries for proper distribution of assets to be bequeath
through the Will
In some cases, the authenticity of the Will may be questioned due to
mistakes in drafting. To remove such errors, a probate is required.
It is not always that a person will be appointed as an executor of the Will. At
times, any institution, firm, or a bank may be appointed as executor. In
such a case, it may waive the requirement that a Will has to be probated
before Property/ money derived from it is transferred to the beneficiary.
This can be done where the beneficiary is the principal heir-at-law, and
other all other probable heirs-at-law have waived their rights by signing a
waiver authorizing the executor / transfer the property, as the case may be,
to the beneficiary.
Probate of Will is essential when an estate’s assets are solely in the name
of the deceased, who owned the property with no other names attached to
it. The Will has to be probated to transfer the property in the name of the
beneficiary(s).
In case there are no beneficiaries named or they have predeceased the
testator, it is necessary to obtain probate of the Will. In case the
beneficiaries are not named or are predeceased, the Will has to be
probated to transfer funds or titles into beneficiaries’ names.
In the case that a deceased person is not the sole owner of a property, but
owns it along with other persons, probate has to be obtained to remove the
deceased’s name from the property jointly owned, and transfer own share
of the property to the appropriate beneficiaries.

Details required for filing a probate petition

For filling a probate, we require the details of the deceased person, the
executor, the heir, the Will and the property that has to be bequeathed
through that Will as mentioned below.
(A) For the deceased-
Full name
Nationality and current country of residence.
Latest permanent residential address (where the deceased resided at the
time of his/ her death)
Marital status of the deceased
Occupation of the deceased at the time of his/ her death
True copy of death certificate.
(B) For the Will-
Date of execution of the Will
Place of execution of the Will
Whether the Will was registered or not?
(C) For the Heir/s-
Personal details of the heir/s
Relation of the heir with the deceased
If any heirs have pre-deceased the deceased?
(D) For the Executor
Number of executors appointed
Name of the executor.
Nationality and current country of residence.
Age
Latest permanent residential address
(E) For the property that is to be bequeathed-
Nature of property- movable/ immovable/ tangible/ intangible.
In case of immovable property- address and description of the property
In case of intangible or intellectual property- registration details of a
trademark, copyright, patent, design thereof if any
Filling of a probate petition
Law gives a definite procedure for filing a probate petition. According to
Section 276 of the Indian Succession Act, an application for a probate
petition has to be made in English or the language in ordinary use in
proceedings before the respective Court. A copy of the Will has to be
annexed with the application. The below mentioned details have to be
provided-
the time of occurrence of the death of the testator.
Copy of the latest Will made by the testator.
proof that the Will has been duly executed.
the list of the assets to be bequeathed through the Will.
proof that the petitioner or the executor has been named in the Will at the
time of filling an application for probate.
proof that the deceased at the time of his demise had a secure place of
residence, or had some property, situate within the jurisdiction of that
particular Judge when the application is made to the District Judge
proof that the deceased at the time of his demise had a secure place of
residence within the jurisdiction of such Delegate when the application is
made to a District Delegate.
Documents Required for obtaining a Probate
While applying for obtaining probate the below-mentioned documents are
required to be submitted. Submission of these documents is a requisite for
proving the genuineness of the Will.
The Will is not only genuine, but also the latest Will made by the testator.
The courts often consider the question of whether the Will that is sought to
be probated is the last and final Will of the testator.
The proof of death of the testator. (Copy of death certificate of the
deceased).
Proof that the Will is validly executed in clear conscience without any
coercion or undue influence on the testator.
Along with the application, the petitioner has to furnish a blank stamp paper
of value equivalent to the necessary court fee on which the court grants the
probate.
After the petition is filed in the court, the court issues notice to the next of
kin of the deceased. This notice gives the next of kin of the deceased an
opportunity to file their objections and make claims on the estate of the
deceased. If no objections are filed, probate is granted right away.
A General public notice is given in the newspaper as a declaration.

BEFORE THE ___________ JUDGE _________COURT

PETITION NO. __________ OF 20__

Petition for probate of the will of (a)

____________________Deceased.
IN THE MATTER OF:

Mr. AAA_________ PETITIONER

R/O_____________ OCCUPATION _________

(If deceased was a bachelor or spinster that should be stated)

PETITION FOR PROBATE OF WILL OF XXX EXPIRED ON ____ IN

FAVOUR OF AAA SON OF XXX BY CASTE _____ UNDER SECTION
276 OF INDIA SUCCESSION ACT, 1925

MOST RESPECTFULLY SHOWETH:

(1) That the above-named XXX (hereinafter after to as said deceased)

who being a Hindu ruled by Hindu Succession Act and expired on the
______ day of _________ at_______ within the jurisdiction of this court
which had been his fixed place of residence (or where he was
temporarily resident, his fixed place of residence being at
____________________) within the jurisdiction of this court or leaving the
property within the jurisdiction of this court as will appear from the
affidavit of assets instituted herewith.

(2) That the said deceased left a writing, which is his last will and
testament. The said writing, hereinafter referred to as the will, is
marked Exhibit "A" and is handed in separately for being filed and kept
in a safe place in the office of the Prothonotary and Senior Master. A
copy of the said will is hereto annexed and also marked Exhibit "A'.

(3) That the said will duly executed at ______ on the ______ day of
______20 ______

(5) That the petitioner is the executor or one of the executors named in
the said will or the executor according to the tenor thereof.

(6) That the petitioner has truly set forth in schedule No. I, hereto
annexed and marked Exhibit "B", all the property and credits which the
deceased died possessed of or entitled to at the time of his death,
which have or are likely to come to his hands.

(7) That the petitioner has truly set forth in schedule No. II, hereto
annexed the marked Exhibit "C", all the items that by law he is allowed
to deduct for the purpose of ascertaining the net estate of the
deceased.

(8) That the petitioner has truly set forth in Schedule No. III, hereto
annexed and marked Exhibit "D", the property held by the deceased as
trustee for another and nor beneficially or with general power to confer
a beneficial interest.

(9) That the assets of the deceased after deducting the items
mentioned in Schedule No. II but including all rents, interest and
dividends which have accrued since the date of the death of the
deceased and increased value of the assets since the said date are of
the value of Rs ______

(10) The value of assets which will come to petitioner's hands in case
of probate of the will or letters of administration with a copy enclosed
thereto being allowed does not exceed the aggregated sum of Rs.
______ and the net amount after deducting all items which he is legally
allowed to deduct by him being under the value of Rs. ______

(11) That the deceased was a Hindu ruled by Hindu Succession Act (Act
30 of 1956) and at the time of his expiry he left the following and none
other relations who would have been his successors in case of
intestacy under the said Act.

Name, address, age and relationship: remarks, if any (full details)

(12) That petitioner has duly paid the ad valorem duty payable relating
to property of deceased.

(13) That no application has been made before any other court in
probate of said will/letters of administration with a copy enclosed
thereto and no proceedings or suit are pending for managing of the
estate.

(14) petitioner hereby undertakes to manage the estate with credits of

the said A deceased and to make and file a full and true inventory
thereof for exhibiting the same in this court by six months from date of
granting probate of will (or letters of administration) to him, and also
give this court a true account of said estate with credits by one year
from said date.
15. That this application is made bona fide.

16. In the facts and circumstances of case mentioned herein above this
Hon'ble Court may graciously be pleased to:

PRAYER

That the Plaintiff, therefore, prays:

a) to pass order to probate will dated ________ in favour of the

Petitioner effecting throughout the State of _______.

b) to grant any other relief, which the Hon'ble court deems fit, may
please be granted to the plaintiff in the interest of justice.

VERIFICATION BY THE APPLICANT

I, ______ ______ ______ the above-named petitioner, do hereby declare

and say that the statements contained in paragraphs __ to __ and __ of
the above petition are true to my best knowledge and those bearing in
paragraphs __ and __ thereof are my presentations.

Verified at ____ on this ______ day of _____ 20__

PETITIONER

DECLARATION OF WITNESS

I,_______________ one of the witnesses to the last will and testament of

__________ the testator stated in the above petition, do say and declare
that I was present on the _______________ day of_____ at _______________
and saw the testator affix his hand/signature or mark to said will,
marked A per Affidavit of _______________ instituted herewith (or that
the said testator admits the writing enclosed to above petition and
marked A, to be his last will/testament in my presence).

Solemnly affirmed by the said ______ witness this ______day of ______ at

______Court House at Bombay
 Sign

Before me

Commissioner/Magistrate/Oath Office

Conclusion
A probate elucidates a Will and shields an estate from any objection or
claims to the definite beneficiaries of inheritance. Although having Probate
for a Will is an effective method, and sometimes indispensable, it is not
obligatory in each matter related to a Will. The strategies available depend
on nature and shared ownership of the property in the estate.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

TESTAMENTARY AND INTESTATE JURISDICTION
PETITION NO. OF 2013

Petition for probate of the Will of ____________ alias __________ alias ________ of _______,
Hindu, Indian Inhabitant, Occupation: ________, residing at the time of his death at ________
__________ _________ ______ , India
. …The Deceased

_________________,
of Mumbai, Hindu, Indian Inhabitant
aged about ____ years,
Occupation: _____________,
Presently residing at ________,
__________________________,
__________________________,
______________, being the sole / one
of the Executor of the Will
… Petitioner

To
THE HON’BLE CHIEF JUSTICE AND
OTHER PUISNE JUDGES OF THE
HON’BLE HIGH COURT
 THE PETITION OF THE PETITIONER ABOVENAMED

MOST RESPECTFULLY SHEWETH:

(1) That the abovenamed _________ alias __________ alias ______ died at _______ on
______________. Hereto annexed and marked Exhibit “A” is the copy of the death certificate.

(2) That the said deceased at the time of his death had a fixed place of abode at
________________________________, India and has / has not left any immovable property
within Greater Bombay and in State of Maharashtra and elsewhere in India.

(3) That the said deceased left writing, which is his last will and testament. The said writing,
hereinafter referred to as the will, is marked Exhibit “B” and is handed in separately for being
filed and kept in a safe place in the office of the Prothonotary and Senior Master. A copy of the
said Will is hereto annexed and also marked as Exhibit “B”

(4) The said Will was duly executed and registered with the Sub-Registrar of Assurance
__________, bearing registration No. __________, at ______ on ____________. That the
Petitioner is the Sole / one of the Executor named in the said Will and in that capacity has filed
this Petition for Probate.

(5) That the Petitioner has truly set forth in Schedule No. I hereto annexed and marked Exhibit “C”,
all the property and credits which the deceased died possessed of or entitled to at the time of his
death, which have or are likely to come to Petitioner’s hands.

(6) That the Petitioner has truly set forth in Schedule No. II, hereto annexed and marked Exhibit
“D”, all the items that by law he is allowed to deduct for the purpose of ascertaining the net
estate of the deceased.

(7) That the assets of the deceased after deducting the items mentioned in Schedule No. II but
including all rents, interest and dividends which have accrued since the date of the death of the
deceased and increased value of the assets since the said date are of the value of about
Rs.__________ (Rupees ____________ Only).

(8) That the said deceased left him surviving as his only heirs and next-of-kin according to
Indian Succession Act, 1925, the following persons who are residing at the addresses set out
against their respective names :-
Sr. No. Name Relationship with Address
the Deceased
1 __________,
Age: ___

2 __________,
Age: ___
 The Petitioner states that all the above next of kin have given their full and free consent in favour
of the Petitioner. The consent given by the above named next of kin of deceased are annexed
hereto.

(9) That save and except the heirs mentioned herein above, there are no other heirs left by the
deceased.

(10) That no application has been made to any District Court or District Delegate or to any other High
Court for probate of any will of the said deceased or for Letters of administration with or without
the will annexed, to his property and credits.

(11) The Petitioner states that the deceased having bequeathed the said Immovable / movable property
by virtue of the present Will, Probate having effect through out India has been prayed for.

(12) The Petitioner therefore prays:-

That Probate may be granted to the Petitioner having effect throughout the State
of Maharashtra and the Union of India.

Advocate for the Petitioner Petitioner

VERIFICATION
I, _____________, the Petitioner abovenamed, do hereby solemnly declare that whatever
is stated in the paragraphs ___ to ______ are true to my own knowledge and what is stated in
remaining paragraphs _______ is stated on information and belief, and I believe the same to be
true.

Solemnly Affirmed at Bombay )

This day of June 2011 ) Petitioner

Before Me

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

TESTAMENTARY AND INTESTATE JURISDICTION
 PETITION NO. OF 2013

Petition for probate of the Will of ____________ alias __________ alias ________ of _______,
Hindu, Indian Inhabitant, Occupation: ________, residing at the time of his death at ________
__________ _________ ______ , India
. …The Deceased

_________________,
of Mumbai, Hindu, Indian Inhabitant
aged about ____ years,
Occupation: _____________,
Presently residing at ________,
__________________________,
__________________________,
______________, being the sole
Executor of the Will
… Petitioner

SCHEDULE NO. I
Schedule of property
Valuation of the movable properties of the deceased

Bank Balance - Rs. Ps.

Fixed Deposits
Mutual Funds
Less Debts payable as per Schedule II
Net Total

Advocates for Petitioner Petitioner

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
PETITION NO. OF 2013

Petition for probate of the Will of ____________ alias __________ alias ________ of _______,
Hindu, Indian Inhabitant, Occupation: ________, residing at the time of his death at ________
__________ _________ ______ , India
. …The Deceased

_________________,
of Mumbai, Hindu, Indian Inhabitant
aged about ____ years,
Occupation: _____________,
Presently residing at ________,
__________________________,
__________________________,
______________, being the sole
Executor of the Will
… Petitioner

SCHEDULE NO. II
Schedule of Debts, etc.
Funeral Expenses
Total

Advocates for Petitioner Petitioner

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
PETITION NO. OF 2013

Petition for probate of the Will of ____________ alias __________ alias ________ of _______,
Hindu, Indian Inhabitant, Occupation: ________, residing at the time of his death at ________
__________ _________ ______ , India
. …The Deceased

_________________,
of Mumbai, Hindu, Indian Inhabitant
aged about ____ years,
Occupation: _____________,
Presently residing at ________,
__________________________,
__________________________,
______________, being the sole
Executor of the Will
… Petitioner

I, ____________, a __________ (relationship with the deceased) of the Deceased, the

Petitioner, do hereby swear and state that I believe that the WILL referred to in the Petition
herein and marked Exhibit “B” is the last Will and testament of deceased Late
____________ alias _____________ alias ___________ and that I am the Sole / one of the
Executor therein named and that I will faithfully administer the property and credits of the said
deceased and in any way concerning his will by paying his debts and then the legacies therein
bequeathed so far as the said assets will extend, and that I will make and exhibit a full and true
inventory of the said property and credits in this Hon’ble Court within six months from the date
of the grant to be made to me or within such further time as the administrator to this Hon’ble
Court within one year from the same date or within such further time as the said Court may from
time to time appoint and also render true account of my administration to this Hon’ble Court may
from time to time appoint.

Solemnly affirmed at Mumbai, )

This …… Day of ……………2013 )
Petitioner

Before me,

Advocates for Petitioner

_____________
______________

_______________

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

TESTAMENTARY AND INTESTATE JURISDICTION
PETITION NO. OF 2013

Petition for probate of the Will of ____________ alias __________ alias ________ of _______,
Hindu, Indian Inhabitant, Occupation: ________, residing at the time of his death at ________
__________ _________ ______ , India
. …The Deceased

_________________,
of Mumbai, Hindu, Indian Inhabitant
aged about ____ years,
Occupation: _____________,
Presently residing at ________,
__________________________,
__________________________,
______________, being the sole
Executor of the Will
… Petitioner

I, _________ , aged about ______ years, residing at __________________________, do

hereby solemnly affirm and say as follows:
(1) That I knew and was well acquainted with the deceased ________ alias ___________ alias
_____________ abovenamed.

(2) That on _____________, I was present together with ________ (the other attesting witness) at
the house of ___________ (the deceased) and we did then and there see the deceased set and
subscribe his name at the foot of the testamentary paper in the English language and character,
which is referred to in the petition herein and marked Exhibit “B”, and declare and publish the
same as his last will and testament.

(3) That thereupon I, this deponent and the said ________ (the other attesting witness), did at the
request of the said deceased, and in his presence and in the presence of each other all being
present at the same time, set and subscribe our respective names and signatures at foot of the said
testamentary paper as witnesses thereto.

(4) That the name ________ and signature ________ subscribed at the foot of the testamentary
paper, as of the party executing the same, is in the proper handwriting of the said deceased and
the name, signature and additions, viz. (1) “ Sd/- _______________ _______ ___ _______ (2) “
Sd/- _________ ___________ _________” also subscribed and written at foot of the said
testamentary paper as of the parties attesting execution of the same are in the proper respective
handwritings of the said __________ and of me this deponent respectively.

(5) That at the time the deceased so subscribed his name, signature his right hand thumb impression
and the photograph to the WILL as aforesaid dated this _____________, he was of sound and
disposing mind, memory and understanding and to the best of my belief made and published the
same as of his free will and pleasure.

Solemnly Affirmed at Mumbai, )

This …… Day of June 2013 )
_____________
Deponent
Advocates for Petitioner

VERIFICATION
I, ____________ the attesting witness of the said Will, solemnly declare that what is
stated in the foregoing paragraphs is true to my own knowledge, and I believe the same to be
true.

Solemely Affirmed at Mumbai, )

This …… Day of June 2011 )
___________
Deponent

BEFORE ME

Advocates for Petitioner

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
PETITION NO. OF 2013

Petition for probate of the Will of ____________ alias __________ alias ________ of _______,
Hindu, Indian Inhabitant, Occupation: ________, residing at the time of his death at ________
__________ _________ ______ , India
. …The Deceased

_________________,
of Mumbai, Hindu, Indian Inhabitant
aged about ____ years,
Occupation: _____________,
Presently residing at ________,
__________________________,
__________________________,
______________, being the sole
Executor of the Will
… Petitioner

I, _____________, aged about _______ years, residing at ________ _________

_____________, do hereby state on solemn affirmation as under –
(1) That I knew that the above named _________ alias ___________ alias _____________ of
________, the deceased, who died in at _________ on __________.

(3) That I am also aware that the abovenamed Petitioner has filed a Petition for Probate before
the Hon’ble Courtat Bombay in his capacity as an Executor named therein.

(4) That I am the _________ (relationship with the deceased) of the deceased. I say that I have not
intermeddled with the estate, property and credit of the deceased and I will not intermeddle
thereon in future.

(5) I say that I do hereby waive Service of Citation / Notice upon me, if any.

(6) I say that that I have No-Objection and hereby give my full and free consent to the Probate being
granted to the Petitioner abovenamed without service of Citation upon me and without any
surety.

Whatever I have stated herein above is true and correct to the best of my knowledge.

Solemnly affirmed at Mumbai, )

This …… Day of June 2011 )
_________________

Advocates for Petitioner Before me,

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

TESTAMENTARY AND INTESTATE JURISDICTION
PETITION NO. OF 2013
 Petition for probate of the Will of ____________ alias __________ alias ________ of _______,
Hindu, Indian Inhabitant, Occupation: ________, residing at the time of his death at ________
__________ _________ ______ , India
. …The Deceased

_________________,
of Mumbai, Hindu, Indian Inhabitant
aged about ____ years,
Occupation: _____________,
Presently residing at ________,
__________________________,
__________________________,
______________, being the sole
Executor of the Will
… Petitioner

I, __________, aged about _____ years, residing at ________ __________

____________, do hereby state on solemn affirmation as under –

(1) That I knew that the above named ________ alias _____ alias _______ of _______, the
deceased, who died in at ______ on ________.

(3) That I am also aware that the abovenamed Petitioner has filed a Petition for Probate before
the Hon’ble Courtat Bombay in his capacity as a Executor named therein.

(4) That I am the _________ (relationship with the deceased). I say that I have not intermeddled with
the estate, property and credit of the deceased and I will not intermeddle thereon in future.

(5) I say that I do hereby waive Service of Citation / Notice upon me, if any.

(6) I say that that I have No-Objection and hereby give my full and free consent to the Probate being
granted to the Petitioner abovenamed without service of Citation upon me and without any
surety.

Whatever I have stated herein above is true and correct to the best of my knowledge.

Solemnly affirmed at Mumbai, )

This …… Day of June 2011 ) ___________

Advocates for Petitioner Before me,

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
PETITION NO. OF 2013

________________ … Deceased

______________________ … Petitioner

MEMORANDUM OF REGISTERED
ADDRESS OF THE PETITIONER
_______________
Advocates for Petitioner
_____________

______________

_______________

Advocates for the Petitioner

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
PETITION NO. OF 2013

Petition for probate of the Will of ____________ alias __________ alias ________ of _______,
Hindu, Indian Inhabitant, Occupation: ________, residing at the time of his death at ________
__________ _________ ______ , India
. …The Deceased

_________________,
of Mumbai, Hindu, Indian Inhabitant
aged about ____ years,
Occupation: _____________,
Presently residing at ________,
__________________________,
__________________________,
______________, being the sole
Executor of the Will
… Petitioner

VAKALATNAMA

To,
The Prothonotary & Senior Master
High Court
Bombay

Sir,

I, ____________, the Petitioner abovenamed do hereby appoint ___________, Advocates,

to act, appear, plead for me and on my behalf in the above matter.

In witness whereof, I have set and subscribed my hands to this writing at Mumbai.

Dated this Day of June , 2013

Petitioner
Accepted

Advocates for Petitioner

_____________

______________

_______________

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

TESTAMENTARY AND INTESTATE
JURISDICTION
PETITION NO. OF 2013

_____________ … Deceased

_______________________ … Petitioner
 *************************************
PROBATE PETITION
*************************************

Advocates for Petitioner

_____________

______________

_______________

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

TESTAMENTARY AND INTESTATE
JURISDICTION
PETITION NO. OF 2013

_____________ … Deceased

_______________________ … Petitioner

*************************************
SCHEDULE II
*************************************
Advocates for Petitioner
_____________

______________

_______________

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

TESTAMENTARY AND INTESTATE
JURISDICTION
PETITION NO. OF 2013

_____________ … Deceased

_______________________ … Petitioner

*************************************
SCHEDULE I
*************************************
Advocates for Petitioner
_____________

______________

_______________

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

TESTAMENTARY AND INTESTATE
JURISDICTION
PETITION NO. OF 2013

_____________ … Deceased

_______________________ … Petitioner

*************************************
EXECUTOR’S OATH TO ADMINISTER PROPERTY
*************************************

Advocates for Petitioner

_____________

______________
_______________

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

TESTAMENTARY AND INTESTATE
JURISDICTION
PETITION NO. OF 2013

_____________ … Deceased

_______________________ … Petitioner

*************************************
AFFIDAVIT OF ATTESTING WITNESS
*************************************

Advocates for Petitioner

_____________

______________

_______________
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE
JURISDICTION
PETITION NO. OF 2013

_____________ … Deceased

_______________________ … Petitioner

*************************************
CONSENT AFFIDAVITS
*************************************

Advocates for Petitioner

_____________

______________

_______________

Illustration appended in Indian Evidence Act, Section 9 (a); 8 (d) -

9(a) The question is, whether a given document is the Will of A. The state of A's property and of
his family at the date of the alleged Will may be relevant facts.

8(d) The question is, whether a certain document is the Will of A.

The facts that, not long before the date of the alleged Will, A made inquiry into matters to which the
provisions of the alleged Will relate, that he consulted vakils in reference to making the Will, and that
he caused drafts or other Wills to be prepared of which he did not approve, are relevant.

LIABILITIES WHICH MAY BE ATTACHED TO PROPERTIES SO BEQUEATHED

Sections 167 to 170

LEGACIES TO CREDITORS AND PORTIONER

Section 177 – Legacies to Creditors and Potioners

DISPOSITION OF PROPERTY NOT BELONGING TO THE TESTATOR

Section 180 to 190

BEQUESTS TO AN EXECUTOR
Section 141

INTERPRETATION OF WILL
Section 75 – questions as to object or subject of the WILL
Section 76 – Misnomer or misdescription of object
Section 77 – supplying of words
Section 78 – Rejection of erroneous particulars
Section 79 – when part may not be rejected as erroneous
Section 80 – Entrinsic evidence to prove patent ambiguity
Section 81 – Extrinsic evidence inadmissible to prove patent ambiguity or deficiency – where two
(inconsistent) conclusion of equal force can be drawn, evidence cannot be given – for example see
illustration – “aunt” “mary”
Section 82 – meaning of Clause to be gathered by reading entire WILL
Section 83 – interpretation of Words in a WILL – when construed wide when restrictive
Section 84 – where two possible construction – which clause to be preferred
Section 85 – No part of the WILL to be rejected on the ground that it is incapable of precise meaning
Section 86 – Interpretation of Words repeated in different parts of the WILL
Section 87 – Testators intention to be effectuated as far as possible
Section 88 – where there are two clauses which are patently inconsistent, the last one is to be
preferred and first one is to be ignored;
Section 89 – A WILL or a particular bequest of property may be rendered nullity if it is not capable of
expressing ant definite intention of the testator or if it is uncertain in its application to the object or
subject with which it is dealing
Section 90 – Words describing property in a WILL, shall be deemed as describing that property,
unless a different intention appears in the WILL
Section 91 – Deeming bequest of estate of the Property, to which the testator has power to appoint
by WILL; deeming bequest of property in general terms / manner
Sections – 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 107, 108, 111, 112, 113, 114,
115, 116, 143, 144, 145

SPECIFIC LEGACIES
Sections 142, 148, 149

WHEN LEGACY LAPSES AND WHEN NOT

Sections 105, 106, 109***, 110, 129, 130, 131, 132, 136, 179

BEQUESTS WHICH DOES NOT TAKES PLACE

Section 152 – Ademption of legacies
Section 153 – Exception to Ademption of Legacies
Sections 154 to 166

THE TIME OF VESTING OF INTEREST IN THE LEGATEE

Section 104 – if given in general terms, without specifying the time – immediate vesting of legacy
Section 119 – vesting of interest postponed to happening of a certain event
Section 120 – vesting of interest is postponed on the happening or non happening of an uncertain
event
Sections 121, 124, 128, 137, 147

When the properties are specifically bequeathed to a legatee, the same could be attached and be
sold in execution – P.P. Satyabhama versus M A John – AIR 1972 Ker 152

Section 119 – Lyla Darius Jehangir versus Bakhtawar Lentin of Mumbai – AIR 2007 (NOC) 1098
(DB); (1996) 5 SCC 201; P. Somasundaram versus K Rajammal – AIR 1976 Mad 295

The obtaining of LoA does not in anyway affect the interest which is vested by inheritance – An
Assessee inherting assets as sole heir and administering the estate becomes liable to be Assessee
for the purpose of Wealth Tax on Assets intended – Commr of Wealth Tax versus Keshub Mahindra
– (1983) 139 ITR 22

COMPLIANCE TO DIRECTIONS, IF ANY, MADE IN THE WILL, BY THE LEGATEE

Sections – 138, 139, 140

PART VII
PROTECTION OF THE PROPERTY OF THE DECEASED
Section 192 to 210

Section 213 – Establishment of right as a legatee or Executor when established

Constitutionality of Section 213 – (2001) 4 SCC 325 : AIR 2001 SC 1151; (2003) 6 SCC 611 : AIR
2003 SC 2902; Madhukar Rajanna versus – (2007) 5 All MR 339

Section 214 – Court to pass decree against the debtor of the deceased testator only when the
legatee / Executor produces before the Court, the Probate / LOA / Succession Certificate /
Certificate granted u/s 31 and 32 of the Administrators General Act, 1913 / Certificate granted under
Succession Certificate Act, 1889 / Certificate granted under Bombay Regulation Act of 1827.

PART IX
PROBATE / LETTERS OF ADMINISTRATION / ADMINISTRATION OF THE ESTATE OF THE
DECEASED

The whole of Part IX deals with the procedure for the grant of Probate and LoA, comprising
sections 217 to 369.

Application of this part – subject to “saving clause”, to all grants of (a) Probate; (b) Letters of
Administration with WILL annexed; (c) Administration of the estate of the deceased died intestate.

Section 218 – To whom administration may be granted (in case of Hindus etc.) – if died intestate – to
any person who would be entitled to the estate of the deceased, either wholly or to any part of the
estate; or if no such person applies, the administration may be granted to the Creditor. The Court
may appoint more than one Executor.

Section 219 – Those persons not covered u/s 218.

Section 223 – To whom Probate cannot be granted.

Section 228 – Proving of a WILL, which is however proved and deposited in foreign Court, or in a
Court situated beyond the Court, before whom presented for proving.

Section 232 – Universal or residual legatee may be granted Letters of Administration

Section 233 – The Legal representatives of Residual legatee may apply for Letters of Adm., where
such Residual legatee has died.

Section 234 – To whom LOA may be granted – (a) any person who would be entitled to the
Administration of the Estate of the deceased, presuming that the testator had died intestate; (b) any
other legatee (c) Creditor;

Section 235 – Citation – to whom to be issued before grant of LOA with the WILL annexed.

GRANT OF PROBATE ON COPY OF THE WILL OR ON DRAFT OF LOST WILL

Section 237 to 240

Section 332 – Assent necessary to complete legatee’s title –

If an executor renounces probate, his assent to his own legacy would be ineffectual – Commr of
Income Tax versus Estate of (deceased) T P Ramaswami – (1962) Mad 380

It is also essential for an executor to prove the Will or otherwise manifest his intention to act before
he can claim the legacy – Prosono Coomar Ghose versus Adm. General of Bengal – (1888) ILR 15
Cal 83

When there is no Executor appointed, the heir at law represents the estate and he can give the
consent which would be sufficient – Deshpande versus Srinivasan – (1954) Mad 1003
The legatee has an inchoate right to the legacy before such an assent and he can assign or transfer
the legacy to anyone he likes – (illus. Section 336)

Hasanali Moledina versus Popatlal Prabhudas – (1912) 14 Bom LR 782

The Executor has power to give assent to a legacy even before he obtained the probate of the Will –
Indu Prava Debi versus Durgacharan Mitra – AIR 1940 Pat 40; (Kadiyala) Venkata Subamma versus
(Katreddi) Ramayya – AIR 1932 PC 92