The High Court consequently set aside the rejection of a request for attestation of mutation of inheritance and directed the Tehsildar concerned to reconsider it in accordance with law.

The Court was hearing a writ petition challenging the rejection of the petitioner's application for attestation of mutation of inheritance based on a Will executed in his favour. The application had been rejected solely because the Will had not been probated.

A Single Bench of Justice Sanjay Dhar observed: “As per unamended Section 213 of the Indian Succession Act, 1925, was in operation prior to the amendment effected to the said Act in the year, 2025, no right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed. Vide Act No. 39 of 2025, the Indian Succession Act, 1925 stands amended and section 213 of the said Act has been omitted.”

The Bench further remarked: “In view of the aforesaid development, the requirement of obtaining the probate of a Will before claiming right under a Will is not mandated in law. Therefore, the action of the respondent No. 3 in refusing to consider the case of the petitioner for attestation of Mutation of Inheritance, on the basis of a Will in his favour, is not sustainable in law.”

The matter arose after the petitioner sought attestation of mutation of inheritance on the strength of a Will executed in his favour. The Tehsildar rejected the application because probate of the Will had not been obtained.

The petitioner challenged that refusal before the High Court. Notice was accepted on behalf of the respondents, following which the Court considered the effect of the 2025 amendment to the Indian Succession Act, 1925.

The High Court noted that unamended Section 213 restricted an executor or legatee from establishing rights in a court of justice without probate or letters of administration issued by a competent court. Act No. 39 of 2025, however, omitted Section 213 from the Indian Succession Act, 1925.

The basis of the impugned refusal was recorded in the order as follows: “application of the petitioner seeking attestation of Mutation of Inheritance in his favour on the basis of a Will, has been rejected on the ground that the same has not been probated.”

The Court held that this reason could not survive the statutory amendment. Since probate was no longer mandated before claiming a right under a Will, the petitioner's mutation application could not be refused from consideration solely for want of probate.

The High Court, accordingly, set aside the impugned order of rejection and directed reconsideration of “the case of the petitioner for attestation of Mutation of Inheritance on the basis of the Will in accordance with law.”

The reconsideration was made time-bound, to be completed within a period of one month from the date a copy of this order was made available.

Case Title: Rakesh Kumar v. Union Territory of J&K

Citation: 2026 LiveLaw (JKL)

Appearances

For the petitioner: Advocate Navneet Dubey

For the Respondents: Advocate Nisha Kangotra, appearing for Senior Additional Advocate General Monika Kohli

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