Unprobated wills and attorney-executed conveyances: the note explains why interim relief and title challenges may still survive.
Section 213 of the Indian Succession Act bars proof of a right under an unprobated will, but the note states that it does not prevent an executor or legatee from pleading that right in a suit or seeking interim protection where the estate is under threat. It also explains that probate perfects the executor's position rather than creating it. On the conveyance issue, the note says a document executed by an attorney is not invalid merely because the underlying power of attorney was not itself registered, where the Registration Act's requirements for presentation and execution are otherwise satisfied. It adds that the objections raised did not undermine title at the interlocutory stage.
Issues: (i) whether Section 213 of the Indian Succession Act, 1925 barred the plaintiffs from maintaining the suit and obtaining interlocutory relief on the basis of an unprobated will; and (ii) whether the 1999 conveyances were invalid for want of a registered power of attorney or for any infirmity under the Registration Act, 1908.
Issue (i): Whether Section 213 of the Indian Succession Act, 1925 barred the plaintiffs from maintaining the suit and obtaining interlocutory relief on the basis of an unprobated will.
Analysis: The bar in Section 213 operates against the establishment of a right under a will without probate or letters of administration. It does not prevent the executor or legatee from asserting such a right in a plaint or from seeking interim protection where the estate is under threat. Section 211 recognises the executor as the representative of the deceased and indicates that the estate vests in the executor upon the testator's death, subject to acceptance of office, with probate serving to perfect that position rather than create it.
Conclusion: Section 213 did not bar the suit or the prayer for interim relief; the preliminary objection failed.
Issue (ii): Whether the 1999 conveyances were invalid for want of a registered power of attorney or for any infirmity under the Registration Act, 1908.
Analysis: Registration of a document evidences execution but does not conclusively establish substantive validity. Sections 32 and 33 of the Registration Act regulate presentation and recognition of powers of attorney for registration purposes, but they do not require the attorney's authorising power of attorney itself to be registered merely because the attorney executed the conveyance on behalf of the principal. The objections based on Sections 28 and 30 also did not show an infirmity in the Mumbai registration of the documents executed in 1999. On the facts, the challenge to the 1999 transactions was not strong enough to displace the contesting defendants' claimed title at the interlocutory stage.
Conclusion: The challenge to the 1999 conveyances failed, and the documents were not shown to be invalid on the grounds urged.
Final Conclusion: The plaintiffs failed to establish a prima facie case for injunction or for restraining reliance on the impugned documents, and both interlocutory applications were dismissed with costs.
Ratio Decidendi: Section 213 of the Indian Succession Act, 1925 bars the establishment of a right under a will without probate, but it does not prohibit the assertion of that right in a suit or the grant of interim relief; and a conveyance executed by an attorney is not invalid merely because the underlying power of attorney was not itself registered, where the Registration Act's requirements for presentation and execution are otherwise met.
TaxTMI 
AI Drafter ✕
TaxTMI 
TaxTMI 
