When a person dies, the law abhors a vacuum. The property, the debts, the half-finished lawsuits and the unkept promises of the deceased do not evaporate — they must vest in someone who can sue and be sued, collect and pay, sell and distribute. That someone is the executor (where a will names him) or the administrator (where the court appoints him). Part IX of the Indian Succession Act, 1925 is the charter of this office. It tells us what an executor or administrator is (a legal representative in whom the whole estate vests under section 211), what he may do (sue, dispose, manage, compound, invest), what he must do (collect assets, file an inventory and account, pay debts in their statutory order, assent to legacies) and what he is liable for if he meddles wrongly or breaches trust. This article maps those powers and duties section by section, anchoring each in the bare provision and in the case law of the Privy Council and the Supreme Court.
Executor, administrator and the office of representation
The Act draws a sharp but narrow distinction. An executor is, in the language of section 2(c), "a person to whom the execution of the last will of a deceased person is, by the testator's appointment, confided." He owes his office to the testator's choice expressed in the will. An administrator, by contrast, is a person appointed by competent authority to administer the estate where there is no executor — either because the deceased died intestate, or because the will appointed no executor, or the named executor is dead, incapable or unwilling to act. The administrator's authority flows from the grant of letters of administration; the executor's flows from the will itself.
Despite this difference in origin, the Act treats the two offices as functionally identical once the person is clothed with authority. Section 211 speaks of "the executor or administrator, as the case may be," and almost every subsequent power-and-duty provision uses that twinned phrase. The practical upshot is that, save for the moment and mode of derivation of title, an executor and an administrator stand on the same footing as the legal representative of the deceased. For the foundational vocabulary of "will," "probate," "letters of administration" and "legal representative," see Definitions and Key Concepts; for how Part IX sits within the architecture of the statute, see the Introduction, Scheme and Application.
Section 211 — the executor as legal representative; vesting of the estate
Section 211 is the keystone. Sub-section (1) declares: "The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such." Two consequences follow at once. First, the executor or administrator is the universal representative of the deceased — he steps into the shoes of the dead person for the entire estate, not merely a part of it. Second, the property vests in him; he holds it not beneficially but as a representative, to administer for the benefit of creditors and beneficiaries.
Sub-section (2) carves out an important exception for Hindus, Muhammadans, Buddhists, Sikhs, Jainas, Indian Christians and Parsis: as to such persons the section does not vest in the executor or administrator any property that would otherwise pass by survivorship — for instance, the interest of a coparcener in Hindu joint family property, which devolves by survivorship rather than through the estate of the deceased. The vesting under section 211 is thus confined to property that the deceased could dispose of and that does not pass outside the estate.
Title flows from the will, not from the grant of probate
A perennial examination point: when does the estate vest in an executor — on the testator's death, or only when probate is granted? The settled answer is that an executor derives his title from the will, and the property vests in him from the moment of the testator's death; probate merely furnishes conclusive proof of that pre-existing title. The classic authority is the Privy Council decision in Meyappa Chetty v. Supramanian Chetty (1916) LR 43 IA 113, where the Board held that an executor derives his title from the will and not from the probate, and that the right of action in respect of the deceased's personal estate vests in the executor on the death of the testator. Probate, said the Board, is but authenticated evidence of that title, not its source.
This is why section 211 effects vesting independently of probate. The grant of probate under the Act does not create the executor's title; it confirms it and makes it certain. An administrator stands differently in this respect — because his authority is conferred by the grant of letters of administration, his title relates back, but it is the grant that constitutes him. Understanding this distinction is essential to reading section 213, considered next.
Section 213 — establishing the right in court (and its 2025 repeal)
Section 211 vests the estate; section 213 governs proof in litigation. As originally enacted, section 213(1) provided that no right as executor or legatee could be established in any Court of Justice unless a court of competent jurisdiction had granted probate of the will or letters of administration with the will annexed. The provision did not bar the vesting or the existence of the right; it barred its judicial establishment in the absence of a grant.
The Supreme Court explained this precisely in Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Bose, AIR 1962 SC 1471. The Court held that section 213 does not say that no person can claim as a legatee or executor unless he obtains probate; the will takes effect on the death of the testator, and what the section requires is only that the right as executor or legatee can be established in court when probate has been obtained. The constitutionality of the section was upheld in Clarence Pais v. Union of India, (2001) 4 SCC 325 (AIR 2001 SC 1151), where Christian petitioners argued the probate requirement discriminated against them; the Court held the provision was a procedural requirement attaching to specified classes of wills, not to the testator's religion, and was neither unconstitutional nor discriminatory.
A significant recent development: the Repealing and Amending Act, 2025 (which received Presidential assent in December 2025) omitted section 213 from the Act, removing the mandatory-probate-to-establish-right rule and bringing consequential changes to sections 3 and 370. Aspirants should note both the historic position under Hem Nolini Judah and Clarence Pais and the fact of the omission, since the substantive scheme of vesting under section 211 and the powers in Part IX remain wholly intact.
Powers to sue and the survival of actions — sections 305 and 306
Because the whole estate vests in him, the executor or administrator may sue and be sued in that representative character. Section 305 provides that an executor or administrator has the same power to sue in respect of all causes of action that survive the deceased, and may exercise the same powers for the recovery of debts, as the deceased had when living.
The crucial companion is section 306, which fixes which rights survive. It provides that all demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease survive to and against his executors or administrators — except causes of action for defamation, assault (as defined in the Indian Penal Code) or other personal injuries not causing the death of the party, and except cases where, after the death, the relief sought could not be enjoyed or granting it would be nugatory. This codifies the common-law maxim actio personalis moritur cum persona (a personal action dies with the person): purely personal torts perish, but claims touching the estate survive. Thus a suit for a debt due to the deceased, or for breach of contract, survives and may be continued by the executor; a suit for the deceased's hurt feelings in a defamation does not.
Power to dispose of property — section 307 and its restrictions
Section 307(1) confers a broad power of disposition: subject to the provisions of sub-section (2), an executor or administrator has power to dispose of the property of the deceased, vested in him under section 211, either wholly or in part, in such manner as he may think fit. The illustrations to the section show the width of the power — he may sell the whole or any part of the immovable estate, mortgage or lease it, and so on, for purposes of administration.
Sub-section (2) imposes important restrictions where the deceased was a Hindu, Muhammadan, Buddhist, Sikh, Jaina or an exempted person. In such cases the general power does not authorise the executor or administrator, without the previous permission of the court, to (a) mortgage, charge or transfer by sale, gift, exchange or otherwise any immovable property for the time being vested in him under section 211, or (b) lease any such property for a term exceeding five years. A disposition made in contravention of these conditions is voidable at the instance of any person interested in the property. The object is protective: to prevent improvident alienation of immovable estate of those communities to the prejudice of heirs and legatees, while leaving routine administration unhampered.
General administrative powers — sections 308 to 316
Beyond disposition, Part IX equips the representative with the ordinary toolkit of estate administration. Section 308 confers the same powers of management that a Hindu, Muhammadan, Buddhist, Sikh, Jaina or exempted proprietor would have over his own property, and to incur expenditure on necessary acts such as repairs, religious or charitable obligations and litigation, and other reasonable expenditure for the benefit of the estate.
Where there are several executors or administrators, the powers may, in the absence of any direction to the contrary, be exercised by any one of them who has proved the will or to whom administration has been granted — section 311. But section 312 protects the estate by providing that upon the death of one of several executors or administrators, all the powers of the office become vested in the survivor or survivors. Section 313 deals with the survival of powers on the death of the sole or surviving executor of a proved will (and the limits on devolution to the executor's own executor — the so-called chain of representation, which the Act restricts). Section 316 empowers the executor or administrator to appoint an agent and to delegate to him acts that cannot reasonably be required to be done in person, subject to the duty to act prudently. Read together, these provisions give the representative real operational freedom while keeping him answerable for the manner in which the office is exercised.
Duty to exhibit inventory and account — section 317
The most concrete statutory duty is in section 317. An executor or administrator must, within six months from the grant of probate or letters of administration (or within such further time as the court may appoint), exhibit in that court an inventory containing a full and true estimate of all the property in his possession and of all the credits and debts. He must, in like manner, within one year from the grant (or such further time as the court appoints), exhibit an account of the estate showing the assets that have come to his hands and the manner in which they have been applied or disposed of. The High Court may prescribe the form of the inventory and account.
The duty is enforced with a penal sanction. Section 317(2) provides that if an executor or administrator, on being required by the court to exhibit an inventory or account, intentionally omits to comply, he is deemed to have committed an offence under section 176 of the Indian Penal Code (omission to give notice or information to a public servant by a person legally bound). Sub-section (3) makes a dishonest or fraudulent inventory or account an offence under section 193 IPC (false evidence). The inventory-and-account obligation is the mechanism by which the court and the beneficiaries hold the representative to account; it makes the administration transparent and auditable.
Collecting assets and paying debts in their statutory order
The cardinal duty of administration is to get in the assets and apply them, first to expenses and debts and only then to legacies. The Act lays down a strict order of priority. Section 320 provides that funeral expenses to a reasonable amount according to the degree and quality of the deceased, and death-bed charges including fees for medical attendance and board and lodging for one month before death, are to be paid before all debts. Section 321 gives next priority to the expenses of obtaining probate or letters of administration, including the costs of judicial proceedings necessary to administer the estate. Section 322 then ranks the costs of administration. Only after these does the estate become available for the deceased's debts (sections 323 onward), and legacies rank below debts.
The discipline of this order is reinforced by the rule that an executor or administrator is not bound to pay or deliver legacies until the debts are provided for, and may require an indemnity before paying a legacy where assets may be required for debts. A representative who pays legacies and leaves debts unsatisfied does so at his peril and may be personally liable. The order of payment is therefore not a mere formality but the spine of the representative's duty of even-handed administration; for the way the estate is constituted before this duty bites, recall the vesting rule of section 211 discussed above and the intestate scheme in Intestate Succession — General Rules.
Assent to a legacy — sections 332 to 337
A legatee's title is not complete merely because the will gives him the legacy. Chapter VIII of Part IX requires the executor's assent. Section 332 provides that the assent of the executor or administrator is necessary to complete a legatee's title to his legacy. The reason is administrative: until the executor is satisfied that the asset is not needed to pay debts, the legatee cannot perfect his claim. Section 333 provides that the executor's assent to a specific legacy is sufficient to divest his interest as executor in the bequeathed thing and to transfer the subject of the bequest to the legatee; such assent may be expressed, or implied from the conduct of the executor.
Section 334 allows the assent to be conditional, and a condition lawfully imposed must be fulfilled before the legatee can take. Section 335 deals with the situation where the executor is himself the legatee, requiring his assent to his own legacy. Critically, section 336 provides that the assent of the executor to a legacy gives effect to it from the death of the testator — the assent, once given, relates back so that the legatee is treated as entitled from the testator's death. Section 337 protects the estate's creditors by providing that the executor is not bound to pay or deliver any legacy until the expiration of one year from the testator's death (the "executor's year"), allowing time to ascertain and discharge debts. Assent is thus the hinge that converts the executor's representative holding into the legatee's beneficial title.
The executor de son tort — intermeddling and its liability
What of a person who, with no grant and no appointment, simply meddles with the estate? The Act adopts the common-law concept of the executor de son tort (executor of his own wrong). Section 303 provides that a person who intermeddles with the estate of the deceased, or does any other act which belongs to the office of executor, while there is no rightful executor or administrator in existence, thereby makes himself an executor of his own wrong. There are statutory and common-law exceptions: acts done in mere kindness, such as taking charge of goods to preserve them, arranging the funeral, or providing for immediate necessaries, do not make a person an executor de son tort.
The consequence is liability without the privileges of office. Section 304 provides that such a person is answerable to the rightful executor or administrator, or to any creditor or legatee of the deceased, to the extent of the assets which may have come to his hands after deducting payments made to the rightful executor or administrator and payments made in due course of administration. His liability is therefore measured by the assets he received and dealt with; he cannot retain the estate but he is given credit for proper payments. The doctrine deters strangers from helping themselves to a dead person's property and channels administration through the rightful representative.
Fiduciary character, breach of duty and devastavit
Underlying every specific power and duty is the representative's fiduciary character. The estate vests in him not for his own benefit but for the benefit of creditors and beneficiaries; he is a trustee in substance for the purposes of administration. He must act with the diligence and prudence of a reasonable person managing his own affairs, keep estate money separate, not profit from his office beyond any commission the court allows, and not place himself in a position where his interest conflicts with his duty.
Where he commits a devastavit — a wasting or mismanagement of the estate, such as paying legacies before debts, selling assets at an undervalue, or applying estate funds to his own use — he is personally liable to make good the loss to those injured. The Act's structure supports this: the inventory-and-account duty of section 317 makes the administration auditable; the order of payment in sections 320 onward fixes the standard against which a misapplication is judged; and the restrictions in section 307(2) render improvident alienations of certain communities' immovable property voidable at the instance of interested persons. The powers of the office are wide, but they are held on a tight rein of accountability, and the courts will not allow a representative to convert a position of trust into a source of private gain.
Executor distinguished from trustee, agent and heir
It helps to place the office against neighbouring concepts. An executor is not an ordinary trustee: the whole estate vests in him as legal representative and he may dispose of it in the course of administration, whereas a trustee holds specific trust property on defined terms for defined beneficiaries. Yet for the purpose of administration the executor occupies a fiduciary position closely analogous to a trustee, and once administration is complete and assets are set apart for beneficiaries, he may hold the residue as a trustee proper.
He is not an agent of the beneficiaries: his authority is original, derived from the will or the grant, not delegated by those he serves, and he sues and contracts in his own representative name. Nor is he the heir: the heir takes beneficially on intestacy subject to administration, whereas the executor takes the legal estate to administer. Where the deceased's property is governed by personal law — for example Hindu joint-family property passing by survivorship, or property affected by the marital regime discussed in Marriage and its Effect on Property of Husband and Wife — the executor's reach is limited by section 211(2) to property that actually forms part of the deceased's disposable estate. Keeping these distinctions clear prevents the common error of treating an executor as a mere stakeholder or a beneficiary's nominee.
Frequently asked questions
When does the property of a deceased person vest in the executor — on death or on probate?
On death. Section 211(1) vests the whole estate in the executor as legal representative, and the executor derives his title from the will, not from the grant. The Privy Council in Meyappa Chetty v. Supramanian Chetty (1916) LR 43 IA 113 held that an executor's title and the right of action in respect of personal property vest on the testator's death; probate is merely authenticated evidence of that title. An administrator, by contrast, derives authority from the grant of letters of administration.
What was the effect of section 213 of the Indian Succession Act, and is it still in force?
Section 213(1) barred a person from establishing a right as executor or legatee in court without obtaining probate or letters of administration; it did not bar vesting. The Supreme Court in Hem Nolini Judah v. Isolyne Sarojbashini Bose, AIR 1962 SC 1471, clarified it was only a rule about proof in litigation, and Clarence Pais v. Union of India, (2001) 4 SCC 325, upheld its validity. The Repealing and Amending Act, 2025 has since omitted section 213, removing the mandatory-probate-to-establish-right requirement.
Which causes of action survive to and against an executor or administrator?
Under section 306, all demands and rights to prosecute or defend actions existing in favour of or against the deceased survive to and against the executor or administrator, except causes of action for defamation, assault or other personal injuries not causing death, and except cases where the relief could not be enjoyed after death or granting it would be nugatory. This codifies actio personalis moritur cum persona: estate-related claims survive; purely personal ones perish.
Can an executor sell or mortgage the deceased's immovable property freely?
Generally yes under section 307(1), he may dispose of the estate as he thinks fit for administration. But section 307(2) restricts this where the deceased was a Hindu, Muhammadan, Buddhist, Sikh, Jaina or exempted person: without the court's previous permission he may not mortgage, charge or transfer immovable property by sale, gift or exchange, nor lease it for a term exceeding five years. A disposition breaching these conditions is voidable at the instance of any person interested.
What is the order in which an executor must pay out of the estate?
Funeral and death-bed expenses to a reasonable amount come first (section 320), then the costs of obtaining probate or letters of administration (section 321), then costs of administration (section 322), then the debts of the deceased (sections 323 onward), and legacies rank last. An executor who pays legacies while leaving debts unsatisfied acts at his peril and may be personally liable; he may demand an indemnity before paying a legacy where assets may be needed for debts.
Who is an executor de son tort and what is his liability?
Under section 303, a person who intermeddles with the deceased's estate, or does an act belonging to the office of executor while no rightful executor or administrator exists, makes himself an executor of his own wrong (de son tort). Acts of mere kindness — preserving goods, arranging the funeral, providing immediate necessaries — are excepted. By section 304 he is liable to the rightful executor, creditors or legatees to the extent of the assets that came to his hands, after credit for proper payments made to the rightful representative or in due course of administration.