By Nihit Nagpal and Vaibhav Mehra
Brief Background
The Indian Succession Act, 1925 (“Act”), as it stands today, is India’s primary law governing inheritance and succession for Christians, Parsis, Jews, and other persons not governed by Hindu or Muslims personal law. Prior to 1925, British-ruled India had multiple laws governing inheritance and wills for different communities and regions, such as The Indian Succession Act, 1865[1]; The Hindu Wills Act, 1870[2]; The Probate and Administration Act, 1881[3]; The Succession Certificate Act, 1889[4], among others, leading to inconsistency and confusion. With the aim to ensure uniform rules of inheritance for all communities not governed by their own personal laws, and to remove inconsistencies that had led to confusion in the administration of estates, the Act was enacted to consolidate these colonial-era succession laws into one coherent statute.
While the Act has consolidated the law, its applicability remained selective by community. For Hindus, Buddhists, Sikhs, Jains, though the Act originally applied to these communities only in respect of testamentary succession (wills), their intestate succession was later governed by separate Hindu law reforms[5]. Muslims were completely excluded from the Act since their inheritance continued to be governed by Islamic personal law (Shariat). The Act applied fully to Christians and Jews for both intestate and testamentary succession, whereas it also applied to Parsis with special intestacy rules codified in the Act (Parts specific to Parsis) reflecting their distinct customs. In summary, the Act was enacted to consolidate diverse succession laws into a single statute, ensuring a uniform and systematic approach to inheritance while respecting personal law exemptions.
The Act’s primary objective was, and remains, to ensure that property of a deceased person passes to the rightful heirs in an orderly and equitable manner, reducing conflict and litigation. However, while the objective may be for the benefit of the heirs, its administration in practice continues to throw up several practical issues.
Practical Issues of Probate
Obtaining probate involves making a petition before the competent court by the executor (or persons claiming through the Will). It serves certain, important practical purposes, such as authenticating the will[6], establishing the authority of the executor[7], and mainly, reducing fraudulent claims by other claimants[8]. This process, however, takes substantial time as it can involve notices to (other) heirs, newspaper publications, waiting periods, and possibly a full trial if objections are raised. This inevitably delays the distribution of assets. For families who had no dispute over a will, this formality was seen as an unnecessary hurdle. Additionally, probate involves court fees (which in some states were substantial, calculated as a percentage of estate value). If a will was uncontested and valid, requiring probate added little substantive value (at least to the heirs who have no inter-se disputes) as it merely confirmed what was anyway evident. Probate, therefore, in the eyes of public, needed to be a voluntary option or required only where a contest is anticipated or is in fact raised. However, Section 213 of the Act provided otherwise. In simple terms, it requires that anyone claiming a right as an executor or legatee (beneficiary) under a will must obtain a probate or letters of administration from a competent court before establishing that right in a court of law. In other words, even if a valid will exists, the executor or beneficiary cannot establish such right in any court unless probate / letters of administration has been obtained.
Over the years, while there were certain amendments made upon protest by various communities[9] to the Act, Section 213 became one of the most debated provisions. From the outset, Section 213 did not uniformly apply to all wills and all communities. Subsection (2) thereof carved out important exceptions and limitations, for example, inter-alia, for Hindus, Buddhists, Sikhs, and Jains, it tied the requirement of probate to the conditions in Section 57 of the Act. Section 57 essentially enumerated certain classes of wills to which mandatory probate applied, namely, wills made by persons of those communities within the territories of the old British Presidency towns, such as Calcutta, Bombay, and Madras (“Presidency Towns”) or wills made outside those areas that dispose of immovable property situated within those areas. In practical terms, (for example) if a Hindu (or Sikh, etc.) made a will in Kolkata, or if a will made by a Hindu anywhere included immovable property in Kolkata, then the executor would need to obtain probate to establish rights under that will. By contrast, a will made by a Hindu and dealing purely with property in, say, Delhi or Lucknow (outside the specified territories) was not compulsorily subject to probate for establishing rights.
In summary, Section 213’s requirement for mandatory probate, while intended as a safeguard, increasingly appeared as a partial, outdated burden on certain citizens. It set up unequal obligations purely on the basis of religion and historical accidents of geography, which became harder to justify in a modern constitutional republic committed to equality. The provision, in effect, ended up discriminating between citizens on the basis of religion and place of residence of the testator or location of property. This selective application was increasingly viewed as arbitrary and unjust, especially since these cities, i.e., Mumbai, Chennai, and Kolkata, that were earlier Presidency Towns, lost such characters and were simply Indian metropolises like any other, and other cities, such as Delhi, Bangalore, etc. had grown equally significant. There was no logical reason why a will relating to property in Kolkata should demand probate while one for property in Delhi did not. The uneven territorial application caused practical confusion. For instance, questions arose like if a will includes properties in multiple states, is partial probate required? These issues led to several litigations over the years. One such case was Kanta Yadav v. Om Prakash Yadav[10], where the Hon’ble Supreme Court, while taking note of several decisions[11] concerning Section 213 and Section 57 of the Act, clarified that since Delhi does fall within the territorial limits under Section 57, the mandate of Section 213 is not attracted. Hence a will made in Delhi regarding property situated in Delhi was valid without probate.
Apart from formal judgments, it is worth noting the critical commentary emerging from retired members of the judiciary. An article by Justice S.A. Kader (former Judge, Hon’ble Madras High Court) in 2003, soon after the 2002 amendment for Christians, passionately argued that it was absurd to continue forcing Hindus (and others) in only the Presidency Towns to undergo probate while their compatriots elsewhere (and now Christians as well) were free of that requirement. He called Section 213, in its limited application, a legal “anachronism” and urged that it be done away with or at least that state governments exercise their power under Section 3 of the Act to exempt communities from it[12].
In sum, with passage of time, the provision’s oddities became increasingly highlighted and left the door open for legislative change. When Parliament partially addressed it in 2002 (relieving Christians), the focus then shifted to the remaining affected groups. The consensus among jurists became that complete repeal or overhaul was the appropriate solution.
Legislative Reforms Leading to Repeal
The movement to repeal Section 213 was propelled by both advocacy and official recommendations over the last few decades:
(a) Amendment Act 2002 (Act 26 of 2002): This amendment was a significant turning point. In response to persistent representations from Christian organizations and leaders, the Indian Parliament amended Section 213 in 2002 to exempt “Indian Christians” from its operation. The words “or Indian Christians” were inserted into Section 213(2) after “Muhammadans” meaning that from 2002 onward, no probate was required to establish rights under a will made by an Indian Christian. The official Statement of Objects and Reasons for that amendment acknowledged that Section 213 in its unamended form was “discriminatory” and should not apply to Christians alone. Parliament thus removed the anomaly for Christians, bringing them to parity with Muslims in being free from the probate mandate. However, by doing so, it inadvertently worsened the relative discrimination against the remaining communities, since after 2002, the only people who still had to obtain probate were Hindus, Sikhs, Jains, Buddhists, and Parsis (and only in those limited areas). The majority population (Hindus) now bore the brunt of a rule from which all minorities were exempt. As one commentator put it, “what is sauce for the goose is sauce for the gander”, i.e., if Christians were relieved, on principles of equality, Hindus and others should be too. The 2002 amendment left Section 213 as an even more glaringly inconsistent provision, increasing calls for its full repeal.
(b) Law Commission of India 209th Report (July 2008): Taking note of the post-2002 scenario, the Law Commission undertook a study specifically on Section 213. In its 209ᵗʰ Report, titled “Proposal for Omission of Section 213 from the Indian Succession Act, 1925” the Commission unequivocally recommended deleting Section 213 altogether. The Commission’s report detailed the discrimination and lack of uniformity caused by the section. It noted that there was “no uniformity” as between (a) Muslims and Christians on one hand (no probate needed anywhere), and (b) Hindus, Sikhs, Jains, Buddhists, and Parsis on the other (probate needed if within certain areas). It concluded that “there does not appear to be any earthly reason” to continue this inequality. Citing Article 15 of the Constitution (prohibiting discrimination on grounds of religion, etc.), the Commission essentially warned that Section 213 was a constitutional anomaly waiting to be struck down. The Report advocated repeal to “remove the disuniformity / discrimination and attain uniformity” in succession law[13].
(c) Advocacy and Parliamentary Input: Apart from the Law Commission, various members of the society continued to push for reform. In January 2024, a formal petition was submitted to the Rajya Sabha by a practicing lawyer, urging amendment of Section 213 to remove its “discriminatory linkage between mandatory probate and the religion of the testator”. The Government’s initial response was that these issues might be considered in the context of a future Uniform Civil Code (UCC). Indeed, the idea of a UCC, a common set of personal laws for all citizens, had gained political currency, and unifying succession law is inherently part of that conversation. However, the government chose not to wait for a comprehensive UCC, and instead moved specifically on Section 213, recognizing that this particular reform was long overdue and relatively uncontroversial.
(Long Due) Repeal by the Repealing and Amending Bill, 2025
In 2025, the Parliament finally repealed / omitted Section 213 from the Act vide The Repealing and Amending Bill, 2025 (“Bill”). While much of the Bill dealt with formally repealing defunct amendments, one substantive change was the deletion of Section 213 from the Act. The Statement of Objects and Reasons and the explanatory notes to the Bill explicitly stated that the amendment “seeks to attain uniformity” in succession law by omission of Section 213, “which is discriminatory”. The legislature openly acknowledged that it was unacceptable in a modern egalitarian legal system to mandate probate based on the testator’s religion or the location of assets and that removing Section 213 would put all communities on the same footing.
The impact of the repeal is significant as it removes an unwanted layer of hurdle and delay for potentially thousands of probate cases. Inheritance processes will become faster and simpler (prospectively[14]), especially in Mumbai / Chennai / Kolkata where many probate petitions were filed solely due to the old mandate.
The repeal of Section 213 does not mean probate, as a practice, itself is abolished. Executors and beneficiaries can still seek probate of a will if they choose, or if they anticipate disputes. Indeed, probate will remain a highly recommended process in many cases, especially for the finality it offers or in cases where there shall be objectors. Courts will still entertain probate petitions and the key change, in practice, is that a beneficiary can also proceed to directly assert their right (for example, file a suit for property or get their name changed in records) without first obtaining probate. If no one contests the will, this can save time and costs. On the other hand, if a dispute arises about the will’s validity, filing for a probate remains as the most suited course of action.
Our View
The repeal of Section 213 levels the playing field, is a progressive stride, and does away with a provision that was, on its face, arbitrary, since procedures around inheritance should not depend on one’s faith or accident of geography. It is also pertinent that this reform comes at a time when India is considering a Uniform Civil Code. India’s inheritance laws for Hindus and others were already largely aligned in substance (except for personal law nuances). Therefore, removing Section 213 clears a procedural disparity and can be seen as low-hanging fruit in the pursuit of uniform civil laws. As India continues to reform its legal system, this step stands as a positive example of modernizing the law in line with constitutional principles and practical realities.
[1] This was the first comprehensive succession law, covering intestate and testamentary succession for persons not governed by Hindu or Muslim personal law. Hindus and Muslims were explicitly exempted from its scope, so it principally applied to Indian Christians, Parsis, Jews and others under British jurisdiction.
[2] This Act extended the requirement of probate and the application of certain testamentary rules to Hindus (as well as Buddhists, Sikhs and Jains) in the Presidency towns of Calcutta, Madras, and Bombay. In effect, it allowed and regulated wills by Hindus in those territories.
[3] This law established the procedural framework for obtaining probate (authentication of wills) and letters of administration (authority to manage estates) from courts. It applied broadly to estates under court jurisdiction and standardized the role of executors / administrators.
[4] This Act introduced a simpler method for heirs to collect debts and securities of a deceased person through a succession certificate, without a full probate proceeding. It was designed to facilitate inheritance of movable assets by recognizing the claimant’s right via a court-issued certificate.
[5] Eventually, the Hindu Succession Act, 1956.
[6] The process involves a court to scrutinize the will, checking that it was duly executed by a competent testator, free of fraud or coercion, and attested by witnesses. This is done to confirm the will’s authenticity, and the benefit is that once probate is granted, the will’s validity is no longer open to challenge on technical grounds, thereby providing finality.
[7] Until probate, an executor named in a will may not have authority to act. This is seen as a safeguard for beneficiaries since the executor’s powers come only after assent of the court.
[8] The requirement that a will be probated (where applicable) meant that anyone could not simply present a will in court as self-proving. Probate deters frivolous or fraudulent wills from being used to quickly grab assets. Many institutions (banks, land registrars) also take comfort in a probate certificate as evidence that they can transfer assets according to the will.
[9] Section 32 of the Act recognized a Christian widow as an heir but excluded her distributive share if a pre-marriage contract so provided. The Kerala Women’s Commission and some Non-Governmental Organizations pointed out that this provision of the Act excluding a Christian widow from her distributive share on the basis of the contract as discriminatory and suggested that she should be entitled to succeed her distributive share notwithstanding any contract to the contrary. This led to the 2002 Amendment which deleted the Explanation to Section 32, ensuring Christian widows inherit their share regardless of such contracts. Further, Section 213 required probate or letters of administration to establish rights under a will, a mandate not applicable to Muslims and inconsistently applied to other communities. The 2002 Amendment inserted “or Indian Christians” in Section 213(2), exempting Christians from this requirement. These changes aimed to remove discrimination and bring parity in succession law.
[10] 2019 INSC 808.
[11] Ram Chand v. Sardara Singh & Ors., AIR 1962 P&H 382 ; M/s. Behari Lal Ram Charan v. Karam Chand Sahni & Ors., 1968 AIR (Punjab) 108 ; Mrs. Winifred Nora Theophilus v. Mr. Lila Deane & Ors., AIR 2002 Delhi 6 ; Clarence Pais & Ors. v. Union of India, (2001) 4 SCC 325
[12] Justice S.A. Kader, “Probate and Letters of Administration, (2003) 2 LW (Journal) 527.
[13] It is noteworthy that this recommendation came in 2008, reflecting a broad consensus in the legal community by then that Section 213 had to go. Unfortunately, the report’s advice was not immediately acted upon as the law remained unchanged for many years after, likely due to the low political priority of succession law reform. But the 209th Report laid the intellectual groundwork echoed the Law Commission’s observations almost verbatim when moving to omit Section 213.
[14] Clause 4 of The Repealing and Amending Bill, 2025.
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