Matter for opinion: The flat in a Co-op. Housing Society Ltd., situated in Mumbai, Maharashtra The above captioned property was jointly purchased by Mrs. X along with along with her spouse Mr. Y in the year 2005. The entire Purchase consideration of captioned flat premises was paid by Mrs. X through her own funds and the same has been reflected in her Income Tax Returns, hence as per the law she was the Sole Owner of the captioned flat premises since the date of purchase of the said flat premises. Mr. Y, died intestate on 01/05/2021, leaving behind him his only 3 surviving legal heirs namely 1) Mrs. X (Wife), 2) Mr. A (son) (USA resident) & 3) Mr. B (son) (NRI) as his legal heirs & representative, each one of them is entitled to have 1/3rd right, title and interest in 50% of the said flat premises. Thereafter by registered Deed of Release dated 29/08/2025, said Mr. A & Mr. B, had released & relinquish their 1/3rd undivided share each out of 50% rights of late Mr. Y in respect of said flat to Mrs. X. On the submission of released deed along with the required documents, the society had endorsed the share certificate and updated the members register accordingly. Mrs. X is sole and legal owner of the said property. Now, Mrs. X made her WILL and registered the same at the sub-registrar office with medical fitness certificate and 2 witnesses, appoint Mr. B (Son) beneficiary for captioned property. Now, if Mrs. X dies leaving behind a valid WILL, do we require a court issued probate order to transfer captioned property to the beneficiary? If probate is required than what is process? And if probate is not required as per the latest amendment, what procedure need to be followed by executor of the WILL / beneficiary of the WILL to transfer the property in the name of beneficiary.
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Probate is no longer mandatory in Mumbai
society will transfer flat on basis of registered will executed by Mrs X
if however son A contests the will then execuit of will need to apply for probate in bombay high court
enclose affidavit of one of the attesting witnesses
On the facts stated, Mrs. X is the absolute owner of the flat. Although the property was originally purchased jointly in the names of Mrs. X and Mr. Y, after the demise of Mr. Y, his undivided 50% share devolved upon his Class I legal heirs under the Hindu Succession Act, 1956. Subsequently, both sons validly executed a registered Release Deed relinquishing their respective shares in favour of Mrs. X. The Co-operative Housing Society has also mutated the records and endorsed the share certificate in her favour. Therefore, Mrs. X presently holds an absolute and marketable title to the property.
Since the property is situated in Mumbai, Maharashtra, the crucial issue is whether probate of the Will is mandatory.
Is Probate Required?
Yes. In the case of immovable property situated within the territorial jurisdiction of the erstwhile Presidency Town of Mumbai, probate of a Will executed by a Hindu is mandatory under Sections 213 and 57 of the Indian Succession Act, 1925. The recent amendments to the Maharashtra Co-operative Societies Act and model bye-laws do not dispense with the statutory requirement of probate. A Co-operative Housing Society may record a nominee or permit provisional transmission for limited purposes, but it cannot confer legal title in derogation of the Indian Succession Act.
Accordingly, even though the Will is duly registered, supported by a medical fitness certificate, and attested by two witnesses, the beneficiary or executor must first obtain Probate from the competent court before the property can be transferred based on the Will.
Procedure for Obtaining Probate
The executor named in the Will (or, if no executor is appointed, the beneficiary may seek Letters of Administration with the Will annexed) should file a Probate Petition before the Bombay High Court (Original Side), if the property falls within its testamentary jurisdiction, or before the competent District Court having jurisdiction, as applicable.
The petition should ordinarily be accompanied by:
Original registered Will.
Original Death Certificate of Mrs. X.
Details of all legal heirs and next of kin.
Schedule and valuation of the property.
Affidavit of the attesting witness (where required).
Court fees payable under the Bombay Court Fees Act.
The Court will issue citations/notices to the legal heirs and publish a public notice. If no caveat or objection is filed, the probate is generally granted after the Court is satisfied about the due execution and genuineness of the Will. If objections are raised, the proceedings become contentious and are tried like a civil suit.
Transfer After Probate
Once Probate is granted:
The beneficiary/executor should submit the Probate Order to the Co-operative Housing Society.
The Society will transfer the shares and membership in favour of the beneficiary.
Mutation in the revenue/municipal records may thereafter be carried out.
The beneficiary will thereafter have a complete and marketable title and can deal with the property, including sale or mortgage.
Effect of Recent Amendments
The amendments relating to co-operative societies have not abolished the requirement of probate for properties situated in Mumbai. They primarily streamline society procedures relating to nomination and transmission but do not override Sections 213 and 57 of the Indian Succession Act, 1925. Therefore, for a flat situated in Mumbai that devolves under a Will, Probate continues to be compulsory before legal title can be perfected in favour of the beneficiary.
Accordingly, in the facts of your case, the beneficiary (Mr. B) cannot obtain a complete legal title solely on the strength of the registered Will. Probate (or, if applicable, Letters of Administration with the Will annexed) must first be obtained, following which the Co-operative Housing Society and other authorities can validly transfer the property in his favour.
Dear Sir/Madam,
Probate is no longer compulsory merely because the flat is situated in Mumbai, as Section 213 of the Indian Succession Act has been deleted.
After Mrs. X’s death, the beneficiary/executor should submit the death certificate, original registered Will, share certificate, transfer application, affidavit/indemnity and other documents required by the society.
However, if any legal heir disputes the Will or the society raises a genuine objection, probate may be obtained from the Bombay High Court by filing a testamentary petition with the original Will and details of all legal heirs and assets.
Advocate Saurabh Agrawal
