Legal Effect of Omission of Section 213, Succession Act, 1925 by the Repealing and Amending Act, 2025

An analysis of the omission of Section 213 of the Indian Succession Act, 1925 by the Repealing and Amending Act, 2025, examining its impact on probate requirements, testamentary rights, pending proceedings, and the distinction between omission and repeal.

Introduction

The erstwhile Section 213, Succession Act, 1925 (ISA/Act), statutorily barred a person from establishing, in a court of justice, a right as an executor or legatee under a will unless a competent court in India had granted probate of that will or letters of administration with the will annexed. This provision has now been omitted by the Repealing and Amending Act, 2025 (Amending Act), which received Presidential assent on 20 December 2025. The omission is a significant development in Indian testamentary succession law. Section 213 operated selectively, depending on the religion of the testator, the place where the will was made, and the location of the immovable property covered by it. Although the Amending Act seeks greater uniformity and removal of colonial-era distinctions, omission of Section 213 materially changes the framework governing proof and enforcement of testamentary rights.

This article examines the history of Section 213, its judicial interpretation, the effect of its omission, and the implications for pending and future disputes concerning wills.

Position before the 2025 Amendment

The jurisprudence on Section 213 was well settled. The provision laid down a rule of evidence and imposed a condition precedent: no right as executor or legatee under a will could be established in a court unless a competent court had accepted proof of the will and granted probate or letters of administration. Civil courts were therefore confined to considering whether such probate or letters had been obtained before recognising rights claimed under the will.

Section 213(1) contained this bar. Section 213(2)(i) then created exceptions and inclusions based on religion, the place where the will was made, and the location of the immovable property concerned. Wills made by Mohammedans were kept outside Section 213(1). In relation to wills made by Hindus, Buddhists, Sikhs and Jainas, Section 213(1) applied only to wills of the classes specified in clauses (a) and (b) of Section 57. Those clauses cover: 1) wills and codicils made on or after 1 September 1870 within the territories then subject to the Lieutenant-Governor of Bengal or within the ordinary original civil jurisdiction of the High Courts at Madras and Bombay; and 2) such wills and codicils made outside those territories and limits, insofar as they relate to immovable property situated within them. By the Succession (Amendment) Act, 1962¹, Section 213(2)(ii) was inserted, extending Section 213(1) to wills made by Parsis dying after commencement of that amending Act, where such wills were of the nature specified in clauses (a) and (b) of Section 57.

On a combined reading of Sections 213 and 57, the prohibition in Section 213(1) applied to:

1. wills made by Indian Christians, irrespective of whether such wills fell within clauses (a) and (b) of Section 57;

2. wills made by Hindus, Buddhists, Sikhs or Jainas falling within clauses (a) and (b) of Section 57; and

3. wills made by Parsis dying after the 1962 Amendment, where such wills fell within clauses (a) and (b) of Section 57.

That remained the legal position until later legislative interventions addressed its discriminatory character.

Amendment to Section 213 ISA

The first significant departure from the original scheme of Section 213 concerned Indian Christians. Exercising its power under Section 3 ISA, Kerala enacted Act 1 of 1997, inserting the words “or Indian Christians” after “Muhammadans” in Section 213(2). As a result, in Kerala, wills made by Indian Christians no longer required probate or letters of administration to establish rights as an executor or legatee in court. Parliament later enacted Act 26 of 2002, with effect from 27 May 2002, extending that exclusion throughout India.

The Kerala High Court repeatedly held that this amendment was procedural and therefore applied even to pending proceedings. In Padmini v. Ittianam², a Division Bench of the Kerala High Court held that Section 213 dealt with the procedure for establishing rights as an executor or legatee under a will. The relevant point of time was when such a right was sought to be established in a court. Accordingly, the law then in force governed the requirement of probate or letters of administration, regardless of the date of execution of the will or the commencement of the proceeding. Even where the amendment came into force during the pendency of the case, probate or letters of administration could not thereafter be insisted upon in the case of Christians.

Omission of Section 213 ISA by the Repealing and Amending Act, 2025

By Section 3 of the Amending Act read with the Second Schedule, Section 213 stands omitted. The Repealing and Amending Act, 2025 repealed certain enactments and amended provisions in other enactments. While Section 4 sets out the effect of repeal of enactments specified in the Act, it does not similarly set out the effect of amendments. The Notes to the Second Schedule, insofar as they concern the omission of Section 213, state that the purpose is to achieve uniformity by removing a discriminatory provision.

Consequences of omission

The immediate effect is that probate or letters of administration with the will annexed are no longer a precondition to establishing rights under a will as executor or legatee before a court. In civil proceedings, a will now stands as evidence that may be proved in accordance with the ordinary law of evidence, rather than only through probate or letters of administration granted by a competent court. The truth, genuineness and validity of the will may therefore be adjudicated in an ordinary civil suit, declaratory action, partition suit, injunction proceeding, or other appropriate civil proceeding where the will is relied upon.

The provisions of the ISA concerning the grant of probate and letters of administration continue to remain in force. Parties may still seek probate or letters of administration with the will annexed, particularly where they seek conclusive proof of rights under the will. The advantage is that such an order operates as a judgment in rem.

Effect on pending proceedings

A significant question is how the omission will affect pending proceedings. The truth, genuineness and validity of a will may already be in issue in civil suits or testamentary proceedings pending on the date Section 213 stood omitted. Whether the omission affects those proceedings depends substantially on whether the amendment is procedural or substantive.

The Kerala High Court’s reasoning on the exemption granted to Indian Christians supports the view that Section 213 was procedural. It did not create rights under a will or extinguish them; rather, it merely regulated the mode by which such rights could be asserted in court. If that analysis is correct, the omission of Section 213 should operate immediately and apply even to pending proceedings. Probate or letters of administration with the will annexed would then cease to be a legal requirement even for wills executed, or deaths occurring, before the amendment.

Omission versus Repeal

The omission of Section 213 also raises the question of the legal effect of “omission” as distinguished from “repeal”. This matters because judicial discussion has often turned on whether omission attracts the protection ordinarily available under Section 6, General Clauses Act, 1897. The Amending Act does not repeal Section 213 as a standalone enactment; it deletes a provision within an existing statute. Whether such deletion preserves pending proceedings and accrued rights, or removes the provision altogether for practical purposes, has important consequences for ongoing testamentary disputes.

Ordinarily, the repeal of an enactment does not affect its prior operation, accrued rights, liabilities incurred, or proceedings already instituted, unless a contrary intention appears.³ If the omission is treated on the same footing, Section 6 may preserve pending proceedings and accrued rights. If an omission is distinct from repeal, the protection of Section 6 may not apply unless there is an express savings clause.

Even assuming Section 6 applies, legislative intent remains decisive. The Notes accompanying the amendment indicate that Parliament intended to remove Section 213 because it was discriminatory, outdated and inconsistent with a uniform law of succession. The object of the amendment was to eliminate distinctions inherited from the colonial framework, under which probate was mandatory only for certain categories of wills made by Hindus, Buddhists, Sikhs, Jains, and Parsis in specified areas.

The explanatory notes and the amendment itself show that Parliament intended to remove the procedural barrier imposed by Section 213. No substitute provision has been introduced. The amended Act no longer requires probate or letters of administration as a condition precedent to establishing rights under a will. The omission is therefore best understood as a deliberate rejection of the earlier statutory prohibition.

That object assumes particular significance in relation to pending proceedings. It is difficult to infer that Parliament, having found the provision unnecessary and discriminatory, intended courts to continue applying it in pending cases. Such an approach would preserve the very distinction the amendment sought to abolish. Therefore, even if Section 6, General Clauses Act is attracted in principle, the legislative intent behind the 2025 Amendment strongly weighs against the continued application of Section 213 to pending matters.

What does this mean for litigants?

The omission of Section 213 substantially alters the law of testamentary succession. Executors and beneficiaries under wills now have greater flexibility in asserting their rights. Where the validity and authenticity of a will are not disputed, probate or letters of administration with the will annexed are no longer a statutory precondition. Rights under the will may be recognised and enforced in ordinary civil proceedings rather than exclusively through testamentary proceedings.

Where there is a dispute regarding the execution, validity, or authenticity of the will, parties continue to have options. They may still approach the competent testamentary court for probate or letters of administration with the will annexed. Equally, they may seek adjudication of the will’s validity in regular civil proceedings in which rights under the will arise.

The probate process therefore retains practical significance. A grant of probate remains a judgment in rem and conclusively establishes the due execution and validity of the will against the world at large. A judgment of an ordinary civil court, by contrast, ordinarily operates in personam and binds only the parties and those claiming through them. Even absent statutory compulsion, it may remain prudent to seek probate in cases involving substantial estates, numerous beneficiaries, or the likelihood of future disputes.

Way forward

The omission of Section 213 marks a major shift in Indian testamentary law. Parliament has removed an anachronistic and discriminatory procedural barrier that required probate or letters of administration as a condition precedent for establishing rights under certain classes of wills. The amendment promotes uniformity in the succession law and permits rights under wills to be determined according to ordinary principles of civil adjudication.

The principal unresolved issue concerns pending proceedings. Earlier Constitution Bench decisions in Rayala Corpn. (P) Ltd. v. Enforcement Directorate⁴ and Kolhapur Canesugar Works Ltd. v. Union of India⁵ support a distinction between omission and repeal, while Fibre Boards (P) Ltd. v. CIT⁶ casts doubt on that distinction and reinforces the importance of legislative intent. Given the procedural nature of Section 213, the precedent relating to the Christian exemption, and the clear purpose underlying the 2025 Amendment, there is strong reason to conclude that the omission should extend to pending proceedings as well.

Some uncertainty may persist until the Supreme Court directly rules on the effect of the omission of Section 213. Even so, the legislative policy behind the amendment is clear: uniformity, simplification, and removal of an outdated procedural restriction. That policy should guide courts in construing its operation in current and future litigation.