Probate of Will – Will though not probated, that does not prevent vesting of property of deceased in executor-Succession Act, 1925 section 211,213.

One Subodh Gopal Bose, was the owner of substantial properties, both movable and immovable. He died on 1st August, 1975 after having made and published his last will and Testament dated 8th July 1975 leaving behind as his only legal heirs, his wife Kamala Bose, and four daughters. Who are the beneficiaries under the said Will and Testament? Kamala Bose expired in 1977. Gita Dutta, one of the daughters, expired in June 2012. The present petition has been filed by Dipak Sarkar in his capacity as the executor of the will and Testament dated 28th April 2012 made and published by Gita Dutta. Application for grant of probate of the said will of Gita Dutta is still pending.

Vesting of property of deceased in executor does not take place as a result of probate. On the executor accepting his office, the property vests in him and the executor derives his title from the Will and becomes the representative of the deceased even without obtaining probate. The grant of probate does not give title to the executor. It just makes his title certain. U/s. 213 of the Indian Succession Act, the grant of probate is not a condition precedent to the filing of a suit in order to claim a right as an executor under the Will. The vesting of right is enough for the executor to represent the estate in a legal proceeding. The right of action in respect of personal property of the testator vests in the executor on the death of the testator. S/s. 211 and 213 of the said Act have different areas of operation. Even if the will is not probated that does not prevent the vesting of the property of the deceased in the executor and consequently, any right of action to represent the estate of the executor can be initiated even before the grant of probate.

The present petitioner has made this application in his capacity as executor of the last will and Testament of Gita Dutta. However, no Court of competent jurisdiction has granted probate of such will as yet although application for such probate may be pending. As such, the present petitioner cannot exercise any right as executor of the will of late Gita Dutta.