Shruti Desai


November 18, 2020

An interesting question came up recently, can there be more than one probate ? One for  Specific property and another for rest or general properties? It was a different question, and I was curious to know can this happen? So, started reading provisions and on research I got the answer. No, you will have to read entire blog. It was not easy for me too. So, let’s go… When there is a Will or application of Letters of Administration its governed by Indian Succession Act,1925. Otherwise property is devolved as per personal succession. Let’s see provisions of The Indian Succession Act,1925 Section 232 in The Indian Succession Act, 1925 232. Grant of administration of universal or residuary legatees.—When— (a) the deceased has made a Will, but has not appointed an executor, or (b) the deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before he has proved the Will, or (c) the executor dies after having proved the will, but before he has administered all the estate of the deceased, a universal or a residuary legatee may be admitted to prove the Will, and letters of administration with the Will annexed may be granted to him of the whole estate, or of so much thereof as may be unadministered. Section 254 in The Indian Succession Act, 1925 254. Appointment, as administrator, of person other than one who, in ordinary circumstances, would be entitled to administration.— (1) When a person has died intestate, or leaving a Will of which there is no executor willing and competent to act or where the executor is, at the time of the death of such person, resident out of the State, and it appears to the Court to be necessary or convenient to appoint some person to administer the estate or any part thereof, other than the person who, in ordinary circumstances, would be entitled to a grant of administration, the Court may, in its discretion, having regard to consanguinity, amount of interest, the safety of the estate and probability that it will be properly administered, appoint such person as it thinks fit to be an administrator. (2) In every such case letters of administration may be limited or not as the Court thinks fit. Section 255 in The Indian Succession Act, 1925 255. Probate or administration, with Will annexed, subject to exception.—Whenever the nature of the case requires that an exception be made probate of a Will, or letters of administration with the Will annexed, shall be granted subject to such exception. Section 257 in The Indian Succession Act, 1925 257. Probate or administration of rest.—Whenever a grant with exception of probate, or of letters of administration with or without the Will annexed, has been made, the person entitled to probate or administration of the remainder of the deceased’s estate may take a grant of probate or letters of administration as the case may be, of the rest of the deceased’s estate. The answer to the question propounded in the order of reference must be found only in chapters 1 and 2 […]

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November 14, 2020

Let us first understand the Hindu Law to discuss and answer this question. 30. Testamentary succession. —[***] Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so[disposed of by him or by her], in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus. Explanation.— The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this[section.] Hindus have two schools of thought Dayabhaga and Mitakshara. Dayabhaga is practiced in West Bengal while Mitakshara is followed in rest of India. Coparcener: The evolution of law: The term coparcener under the Mitakshara system of jurisprudence has a distinct meaning. Its essential characteristic is that the coparcener possesses a right to the family property by birth, the existence of a mere right to partition of family property, cannot be regarded as the touch-stone of coparcenership. Only a male born or adopted into the family can under the ordinary Hindu law, be a coparcener. the right of the widow of a coparcener under the Act is derived under the statute and not by any fiction so as to enable her to take under the general law. So far as alienation of coparcenary property are concerned, it appears that such alienation were permissible in eighteenth century. Indeed, in Suraj Bunsi Koer v. Sheo Proshad Singh and Ors., ILR 6 IA 88 the Privy Council observed as follows:- ” it has been settled law in the presidency of Madras that one coparcener may dispose of ancestral undivided estate, even by contract and conveyance, to the extent of his own share; and a fortiori that such share may be seized and sold in execution for his separate debt.” Thus, the Privy Council also noticed that in Madras alienations by gift were recognized. Such alienations were held by their Lordships to be inconsistent with the strict theory of joint and undivided Hindu family. It is, however, a settled law that a coparcener may alienate his undivided interest in the coparcenary property for a valuable consideration even without the consent of other coparceners. As has been observed by the Privy Council in Suraj Bunsi Koer’s case (supra), such recognition of alienations of coparcenary property for valuable considerations has been one of gradual growth rounded upon the equity which the purchaser for value has to be allowed to stand in his vendor’s shoes and to work out his rights by means of a partition. Although at the time of the judgment of the Privy Council in Suraj Bunsi Koer’s case, the Madras Courts recognised alienations by gift, as time passed the courts of law declared alienations by gift of undivided interest […]

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