A Quiet Repeal With Far-Reaching Consequences: Section 213 And The Repealing And Amending Act, 2025

A quiet legislative change in 2025 may fundamentally alter how wills are enforced in India’s most significant urban centres. The Repealing and Amending Act, 2025 marks a subtle but consequential shift in India’s testamentary succession framework. This legislation brings about a significant change to the Indian Succession Act, 1925 (“Succession Act”), especially concerning wills and inheritance planning.

The repeal of Section 213 raises the following key issues for consideration:

(a) Whether the deletion of Section 213 eliminates the requirement of compulsory probate for certain categories of wills (“Issue 1”);

(b) What practical and legal consequences arise from the removal of mandatory probate (“Issue 2”); and

(c) Whether probate continues to retain relevance as a voluntary safeguard in inheritance planning (“Issue 3”).

(d) What has been the judicial trend insofar as the constitutional validity of Section 213 is concerned (“Issue 4”)

3.1 Position Prior to the Amendment

Prior to the amendment, Section 213 restricted executors and beneficiaries from enforcing rights under a will unless probate or letters of administration had been obtained from a competent court. This requirement, however, applied selectively.

Compulsory probate was mandated only for wills executed by Hindus, Buddhists, Sikhs, Jains, and Parsis where:

• the will was executed within the original territorial jurisdiction of the Calcutta, Madras, or Bombay High Courts; or
• the will related to immovable property situated within those jurisdictions.

Wills executed by Muslims and Indian Christians were expressly excluded from this requirement. Over time, this religion- and geography-based differentiation attracted criticism for being discriminatory and inconsistent with contemporary principles of legal equality.

3.2 Legislative Change Introduced in 2025

The Repealing and Amending Act, 2025 has now formally deleted Section 213 from the Indian Succession Act, 1925. As a result, there is no longer any statutory mandate requiring probate as a pre-condition for enforcing rights under a will, irrespective of religion or the location of the property.

3.3 Consequential Amendments

Consequential amendments have also been introduced:

• Section 3 has been updated to remove references to exemptions linked to Section 213; and
• Section 370 has been amended to delete references to both Section 213 and probate, thereby permitting the issuance of succession certificates without reference to probate requirements.

Together, these amendments reflect a conscious legislative effort to modernise succession law and remove historically contingent procedural barriers.

From a practical standpoint, the immediate effect of the repeal is procedural simplification. Wills executed by Hindus, Buddhists, Sikhs, Jains, and Parsis—including those concerning property in Mumbai, Chennai, and Kolkata—no longer require probate as a condition precedent for enforcing inheritance rights. This substantially reduces time, cost, and administrative burden for beneficiaries.

However, the repeal also brings renewed attention to an important legal reality: probate is not merely a procedural formality. Probate proceedings involve judicial scrutiny of the authenticity, execution, and validity of a will. In the absence of probate, a will remains susceptible to challenge, sometimes years after assets have been distributed, exposing heirs to prolonged litigation and uncertainty.

Despite the removal of compulsory probate, seeking probate voluntarily will often remain a prudent strategic decision. A probated will carries judicial affirmation and operates as a strong shield against future disputes.

For estates involving substantial assets, complex family arrangements, or valuable commercial interests, probate continues to offer finality and legal certainty. The benefits of probate, in such cases, may outweigh the procedural effort involved.

Importantly, the Act clarifies that the repeal does not affect rights, liabilities, or proceedings that have already arisen. Probate proceedings currently underway, as well as probates already granted, remain unaffected. The amendment operates prospectively, reinforcing legal certainty during the transition.

Indian courts have long examined the rationale, scope, and consequences of Section 213 of the Succession Act, particularly in relation to its geographic and community-based application.

In Clarence Pais v. Union of India (2001) 4 SCC 325, the Supreme Court directly addressed the constitutional validity of Section 213. The Court upheld the provision, observing that the requirement of compulsory probate in the former Presidency Towns was historically rooted in administrative convenience and the need for certainty in high-value urban estates. While the Court rejected the argument that Section 213 violated Article 14 of the Constitution, it acknowledged that the distinction was a product of colonial legislative policy rather than any inherent religious principle. The 2025 Bill’s repeal of Section 213 can thus be seen as a legislative response to concerns that the judiciary had noted but declined to remedy through constitutional interpretation.

Similarly, in Krishna Kumar Birla v. Rajendra Singh Lodha (2008) 4 SCC 300, the Supreme Court reaffirmed that probate proceedings are proceedings in rem, meaning the validity of the instrument holds good against all future disputes or claims. The Court emphasized that challenges to a will are best resolved at the probate stage itself, as the grant of probate provides finality and minimizes subsequent disputes among heirs or third parties.

The risks of relying on an unprobated will have also been highlighted in later decisions. In Ramesh Verma v. Lajesh Saxena (2017) 1 SCC 257, the Supreme Court clarified that while an unprobated will may be relied upon in jurisdictions where probate is not compulsory, such reliance does not preclude future challenges to the will’s validity. The Court noted that probate offers a higher degree of legal certainty, especially in contested family arrangements.

The Bombay High Court, in Mrs. Violet Issaac v. Union of India, 1991 (1) Bom CR 389, observed that the compulsory probate requirement in the former Presidency Towns functioned as a safeguard against fraudulent testamentary claims in densely populated and commercially significant regions. The repeal of Section 213 therefore represents a conscious shift away from judicial pre-validation toward post-distribution dispute resolution.

Collectively, these judgments illustrate that while the courts have consistently recognized probate as a powerful instrument for certainty and fraud prevention, they have also treated the requirement as a matter of legislative policy rather than constitutional necessity. The Repealing and Amending Bill, 2025, aligns with this jurisprudence by removing a historically contingent procedural mandate while leaving intact the substantive legal value of probate as a voluntary protective mechanism.

Indian courts have consistently recognised probate as a powerful instrument for certainty and fraud prevention, while treating the requirement of compulsory probate as a matter of legislative policy rather than constitutional necessity.

The repeal of Section 213 represents a deliberate legislative choice to move away from a territorially limited, colonial-era procedural mandate. While the reform addresses concerns of discrimination and procedural rigidity, it simultaneously places greater responsibility on testators and beneficiaries to evaluate risks and adopt informed estate-planning strategies.

In practice, probate may no longer be mandatory—but its legal and strategic value has not diminished. If anything, the importance of thoughtful estate planning has increased in the post-repeal landscape.