Probate is necessary only when the wills are made within the territory of Calcutta, Madras and Bombay or when the wills are made regarding the property situated in the territory of the aforesaid states as per the Indian Succession Act, 1925.

The Supreme Court in Ravinder Nath Agarwal vs. Yogender Nath Agarwal, dated 12.02.21, held that “A   cumulative   reading   of   Sections   57,   213   and   264   would show:

(i)  that a person claiming to be an executor or legatee under a Will cannot rely upon the Will, in any proceeding before a Court of justice, unless he has obtained probate (if an executor has been appointed) or letters of administration with the Will annexed, if such a Will has been executed by certain classes of persons; and

(ii)  that the jurisdiction to grant probate or letters of administration vests only in courts located within the towns of Calcutta, Madras or Bombay and the Courts in any local area notified by the State Government in the Official Gazette.

Therefore, what follows is that:

(i) unless the testator belongs to any of the classes of persons specified in the Act; and

(ii) unless the Will is made or some of the properties covered by the Will are located,   within   the   local   limits   of   a   notified   area,   there   is   no necessity for an executor or a legatee under a Will to seek probate or letters of administration. In fact, the decision in  Balbir  Singh Wasu  (supra) did not take note of the bar under Section 264(2) when it opined in general terms in Paragraph 5 of the judgment that “We do not read Section 213 as prohibiting the executor for applying for probate as a matter of prudence or convenience to the courts   in  other  parts  of   the  country  not   covered  by  Section 213”.

By virtue of Section 213(2)(i) read with Clauses (a) and (b) of Section 57, the mandatory requirement to seek probate or letters of administration for establishing a right as executor or legatee under a Will, is applicable only to Wills made by a Hindu, Buddhist, Sikh or Jaina  within   the   local   limits  of   the  ordinary  original   civil jurisdiction   of   certain  High   Courts  and to Wills made outside those   territories,   to   the   extent   they   cover   immovable   property situate within those territories. Therefore, there is no prohibition for a person whose case falls outside the purview of these provisions, from producing, relying upon and claiming a right under a Will, in any proceeding instituted by others including the other legal heirs for partition or other reliefs.”