Complete Omission of the Mandatory Probate Probate Requirement Section 213- “The Repealing And Amending Bill, 2025”
- By Kanishka Singh
- Articles
“The law of succession is a very important aspect with regard to the orderly transfer of property upon death.” There are strict regulations with regard to the succession of property in India. The Indian Succession Act, 1925, is the principal legislation governing the Succession Act, which was enacted during the colonial era with the intention of consolidating the Succession Act. Although several amendments have been done, some sections have tended to face criticism with regard to being discriminatory and outdated. These would include Section 213, which has established probate as mandatory with regard to the rights granted in a Will.
The law of succession governs the devolution of property upon the death of a person and plays a vital role in maintaining legal certainty and social order. In India, testamentary and intestate succession (except where personal laws apply) is primarily regulated by the Indian Succession Act, 1925, a consolidating statute enacted during the colonial period to unify diverse succession laws into a single legislative framework.[1]
Among the provisions of the Act, Section 213 has historically occupied a contentious position. The section imposed a mandatory requirement of obtaining probate or letters of administration as a condition precedent to enforcing rights under a Will in a court of law.[2] While probate serves as a judicial mechanism for authenticating testamentary documents, its compulsory imposition only upon certain communities and in limited territorial jurisdictions raised serious questions of constitutional equality, fairness, and rational classification.[3]
Recognising these concerns, Parliament introduced The Repealing and Amending Bill, 2025 (Bill No. 193 of 2025), proposing the complete omission of Section 213 and consequential amendments to Sections 3 and 370 of the Indian Succession Act.[4] This article undertakes a detailed examination of Section 213, analyses the proposed legislative changes, and evaluates their legal and practical implications for the law of testamentary succession in India.
[1] Indian Succession Act, 1925, Preamble.
[2] Indian Succession Act, 1925, s. 213.
[3] Constitution of India, art. 14.
[4] The Repealing and Amending Bill, 2025, Bill No. 193 of 2025 (Lok Sabha) December 13, 2025
https://prsindia.org/files/bills_acts/bills_parliament/2025/Repealing_And_Amending_Bill,2025.pdf
II. The Indian Succession Act: Section 213 - Text, Applicability, Legal Implications
1. Statutory Content of Section 213
Under Section 213(1) of the Indian Succession Act, no right as executor or legatee under a Will can be asserted in any court of justice unless the probate or letters of administration of the Will have been granted.[1] This section raised the status of probate to be much more than a mere evidence by making it a prerequisite for the enforcement of the right conferred by the Will.
The Supreme Court has held that under Section 213, without probate, a Will cannot be relied upon either offence or defence in legal proceedings where the right is derived from the Will.[2]
[1] Indian Succession Act, 1925, s. 213(1).
[2] Hem Nolini Judah v. Isolyne Sarojbashini Bose, AIR 1962 SC 1471.
2. Limited and Selective Application of Section 213
Both these sections contains;
Notwithstanding its broad scope, Section 213 was not uniform in its application. This was with the proviso of Section 57, whereby the compulsory probate was limited to the Wills of Hindus, Buddhists, Sikhs, Jains, and Parsis, only if such Wills had been attested within, or in respect to immovable property within, the former Presidency towns of Bombay (Mumbai), Madras (now Chennai), or Calcutta (now Kolkata).[1]
The Muslims were specifically denied the ambit of Section 213 under Section 213(2) on the grounds of being a different religion.[2] Hence, two individuals who were equal regarding property and testamentary intention were held to different standards solely from the point of view of their religion and location.
[1] Indian Succession Act, 1925, ss. 57 & 213 (combined reading).
[2] Indian Succession Act, 1925, s. 213(2).
3. Actual Outcomes for Forced Probate
Specifically, the impact of section 213 was procedural. Beneficiaries who had a valid and unchallenged will still had to file a probate action before asserting their claims.[1] This meant that beneficiaries faced delays and high litigation costs due to the time probate actions take in cities like Mumbai, where probate actions may take years to conclude.[2]
[1] Mrs. R. Vasanthi v. Janaki Devi, (1995) 6 SCC 730.
[2] Law Commission of India, 110th Report on the Indian Succession Act.
4. Constitutional and Judicial Critique on Section 213
A. Equality and Article 14 Concerns
The discriminatory administration of Section 213 drew continuous criticism for contravening the provision under Article 14 of the Indian Constitution, which provides for equality before the law and equal protection by the laws.[1] The classification thus introduced by Section 213, founded on religion and territorial limitations, had no just rational relation to the object of preventing fraud or testamentary authenticity.
B. Judicial Observations
In the case of “Clarence Pais vs. Union of India”[2], the Supreme Court has analyzed the constitutional vires of Section 213 and admitted that the probate is basically a procedural safeguard rather than a substantive requirement in testamentary succession.[3] Although the said section has been held to be constitutional at that point of time, the court has noticed the anomaly that results from selective implementation and left the issue open to Legislative consideration.[4]
The Repealing and Amending Bill, 2025: Legislative Intent
The Repealing and Amending Bill, 2025 is a component of a larger legislative process aimed at repealing outdated laws and stemming the process of provisions becoming violative of constitutional provisions. This is because the Statement of Objects and Reasons clearly sets forth the intention behind the repeal of section 213 of the Act, which seeks to eliminate discriminatory provisions with regard to the uniform application of succession laws.[1]
[1] Statement of Objects and Reasons, Repealing and Amending Bill, 2025.
Examination of Proposed Revisions
A. Amendment to Section 3(1)
The proposed revisions to Under Section 3(1) of the Indian Succession Act, the State Governments had the power to except any sect or tribe from certain sections of the Act, which include Section 213. The Bill seeks to remove the figures “213” from Section 3(1).[1]
Such provision is mere consequent. Once the section 213 itself is deleted, the legal authority to exempt exemptions in this section becomes redundant.[2]
B. Total Exclusion of Section 213
Clause 2(ii) of the Bill: Section 213 is proposed to be omitted in entirety.[3] This is the most substantial change being introduced in the Bill.
The immediate effect is that probate will cease to be an interim step that must be taken before one can give effect to rights under a Will. Persons entitled to property will be able to refer to testaments within the courtroom without violating rules of evidence. What this means is that probate becomes an optional legal protection.[4]
[1] Repealing and Amending Bill, 2025, cl. 2(i).
[2] Principles of statutory interpretation on consequential amendments.
[3] Repealing and Amending Bill, 2025, cl. 2(ii).
[4] Probate jurisprudence under Indian Succession Act.
Legal and Practical Consequences of the Proposed Change
a. Simplification of Testamentary Enforcement
The effect of the removal of Section 213 is that the enforcement of the right to bequests shall be greatly simplified.[1] The executor or legatee shall no longer have to go through probate proceedings on a condition precedent.[2]
[1] Repealing and Amending Bill, 2025, cl. 2(iii)(a).
[2] Repealing and Amending Bill, 2025, cl. 2(iii)(b).
b. Risks of Un-Probated Wills
On the other hand, the abolition of compulsory probate increases the incidence of disputes with respect to forged, created, or suspicious Wills. This is because probate proceedings had operated to filter Wills, conferring a degree of finality with respect to un-probated Wills.[1]
[1] Law Commission observations on procedural simplification in succession law.
c. Continued Relevance of Voluntary Probate
As Despite the repeal, probate carries an immense number of legal implications. Firstly, the probated will continues enjoying the presumption of validity and constitutes a judgment in rem. Strategically, voluntary probate will continue being recommended if the case involves large estates and possible controversies.[1]
[1] Probate law principles; judgment in rem doctrine.
d. Prospective Operation
The Bill has a savings provision; this is to ensure that all rights, obligations, and proceedings that existed beforehand are not in any way affected by the Act. [1]This is based on the established presumption that Acts do not have retrospective effects unless there is a clear intention to the contrary.[2]
[1] Kesoram Industries v. Commissioner of Wealth Tax, AIR 1966 SC 1370 (judgment in rem principle).
[2] Keshavan Madhava Menon v. State of Bombay, AIR 1951 SC 128.
Concluding Observations
The proposed deletion of Section 213 under the Repealing and Amending Bill, 2025 marks a long-overdue and progressive change in Indian succession law. From a law student’s point of view, this proposed change demonstrates that a law student’s concern regarding Section 213 has been answered in that the Legislature has deliberately attempted to bring a procedural law in tune with a colonial legacy and modern societal needs under the Indian Constitution. Section 213 has been a source of unequal distribution in that it places an impractical procedural requirement upon particular communities in certain areas that lack a good reason under a rational principle.
But by abolishing the mandatory probate, the Legislature has buckled down to realizing the goal of equality for Catholics, Catholics, Muslims, Buddhists, Jews, and others alike, as guaranteed by Article 14, to treat people alike, who are similarly situated, despite the difference in religion. The new law also promotes efficiency of procedure, and the cause of justice, especially where the required probate is expensive, time-wasting, and daunting to the ordinary citizen. Since the intention of the testator is thus recognized, it shall not be defeated by unnecessary procedures.
Significantly, the solution introduced by this new legislation is not to alter the institution of probate itself but to eliminate the need for the formality in certain cases. By choosing to allow the continued use of probate as a voluntary safety mechanism, the legislative system is able to recognize the value of judicial oversight in certain situations, especially when there are larger estates or possible disputes involved.
As I see, the Amendment achieves a good balance between efficiency and certainty, freedom and protection, autonomy and judiciary. It modifies the law on testamentary succession in a way that avoids compromising the legal safeguards, and in the process, the future of the law on succession in India is remodelled in a way that is more constitutional and sensitive. As a law student, I wholeheartedly welcome this legislation as a move in the direction of a more balanced and rational law on succession.