Probate Petition and law of limitation
A
perplexing point, in a case for seeking probate of a Will or Letter of
Administration, as the case may be, relates to whether or not the period of
limitation as per Limitation Act 1963 are applicable in testamentary case and
if so, what will be the relevant date for reckoning the period of limitation.
The Supreme Court, very recently in a matter captioned as Sanjay Sharma @
Sanjay Bhardwaj Vs Krishnadhan Khaware & Ors 2026 INSC 708 = SLP (C) No. 13473/2022 decided on 15th
July 2026, has put to rest the ambiguity as regards the aforesaid, and has
authoritatively adjudicated the law, after having culled out the provisions of
Indian Succession Act 1925 and law enunciated in this regard, thus far.
To
set out the facts herein in brief, the application dated 31st August 2005 initiated by one Bhudeo Prasad
Singh, for probate of a Will dated 15th April 1995 executed
by one Shrilal Singhania, was rejected by the District Judge, Deoghar under
Section 222 and 276 of the Indian Succession Act, 19252 by order dated 31st
July 2012. The order was passed on an application filed under Order VII Rule 11
of Code of Civil Procedure, 1908 by the objectors-respondents herein. The matter
was taken to the Jharkhand High Court by way of MA No.153 of 2012 which was
dismissed by judgment dated 28th April 2022.
The
limited issue which presents for consideration before the Supreme Court was as
to whether the application for probate is barred by the law of limitation?
According
to the Supreme Court, the answer to this question is fairly straight forward as
ISA 1925 does not provide for any particular time period within which
application for probate, or revocation thereof can be filed before the
concerned Court. In these circumstances, the residuary provision of the
Limitation Act, 19634 i.e., Article 137 would be the relevant provision. It reads
as under:
|
|
Description
of suit |
Period
of limitation |
Time
from which period begins to run |
|
137 |
Any
other application for which no period of limitation is provided elsewhere in
this Division. |
Three
Years |
When
right to apply accrues |
The
Courts below were swayed by the fact that as the application for probate was
made in 2005, when the testator passed away a decade, prior to 7th June
1995 and as the delay, in their considered view remained unexplained and unjustified and hence it was
barred by limitation. The Supreme Court held
otherwise.
According
to the Supreme Court, the probate of a Will has three -fold purposes-
(a)
It
is a judicial stamp of approval on the genuineness of the Will;
(b)
It
acknowledges the appointment of an executor of the Will;
(c)
It
grants the executor to act for the purposes of the Will. Keeping this in
view, the specific view that the period of limitation for probate commences
from the death of the testator has been rejected.
The
relevant judgment in this context could be found in a judgment of Bombay High
Court in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani, 1983
SCC OnLine Bom 54 has been broadly upheld by the Supreme Court in matters
reported as Kunvarjeet Singh Khandpur v. Kirandeep Kaur (2008) 8
SCC 463, and in Sameer Kapoor v. State (2020) 12 SCC 480 by large
were on same point of adjudication, , except on one point.
The
following paragraph of the judgment of Bombay High Court was quoted by the Supreme
Court in approval and are as under:
“15. Similarly ,reference was made to
a decision of the Bombay High Court in Vasudev Daulatram Sadarangani v. Sajni
Prem Lalwani [AIR 1983 Bom 268] . Para 16 reads as follows : (AIR p. 270)
“16. Rejecting
Mr Dalpatrai's contention, I summarise my conclusions thus—
(a) under the
Limitation Act no period is advisedly prescribed within which an application
for probate, letters of administration or succession certificate must be made;
(b) the
assumption that under Article 137 the right to apply necessarily accrues on the
date of the death of the deceased, is unwarranted;
(c) such an
application is for the court's permission to perform a legal duty created by a
will or for recognition as a testamentary trustee and is a continuous right
which can be exercised any time after the death of the deceased, as long as the
right to do so survives and the object of the trust exists or any part of the
trust, if created, remains to be executed;
(d) the right
to apply would accrue when it becomes necessary to apply which may not
necessarily be within 3 years from the date of the deceased's death;
(e) delay
beyond 3 years after the deceased's death would arouse suspicion and greater
the delay, greater would be the suspicion;
(f) such delay
must be explained, but cannot be equated with the absolute bar of limitation;
and
(g) once
execution and attestation are proved, suspicion of delay no longer operates.”
Conclusion (b)
is not correct while Conclusion (c) is the correct position of law.”
In
both judgments of the Supreme Court, it has been stated that point (b) is
incorrect while (c) is the correct position of law.
The
Supreme Court has therefore held in Sanjay Sharma (Supra) as under:
6.
It is, therefore, a continuous right that can be
exercised at any time so long as the object of the Will survives. The right to
apply would therefore accrue from the date that it becomes necessary to apply.
This obviously need not be within three years from the death of the testator.
In this case, then, the need to apply would commence from the date when the
respondents took actions hostile to the position established by the Will, that is,
the execution of a General Power of Attorney by Laxmi Devi, wife of the
testator on 8th August 2005. In that view of the matter, the application for
probate of Will made by the executor Mr. Bhudeo Prasad Singh, in favour of the
appellants Sanjay Sharma @Sanjay Bhardwaj is held to be within limitation since
the same was filed 31st August 2005”.
As
regards the other issue relating to Order VII Rule 11 of CPC it is held by the
Supreme Court as under:
7. A second issue arises for
consideration. We ask a question as to whether under Order VII Rule 11 CPC on
an application filed by the objector, it was open for the High Court to return
findings that are on the merits of the Will itself. We think not. Whether or
not a particular Will is suspicious comments directly upon the sanctity of the Will
itself which was not open for the Court to adjudicate in the proceedings, summary
in nature without, obviously having appreciated evidence in that regard. The
scope of adjudication of an application under Order VII Rule 11(d) is well
established”.
In order to further reinforce
the dicta, the Supreme Court has also referred to and have applied to a
judgment rendered by it on a matter reported as Salim
D. Agboatwala v. Shamalji Oddhavji Thakkar,
(2021) 17 SCC 100, as follows:
“11.
As observed by this Court in P.V. Guru Raj Reddy v. P.
Neeradha Reddy [P.V. Guru Raj Reddy v. P. Neeradha Reddy, (2015) 8 SCC 331 :
(2015) 4 SCC (Civ) 100] , the rejection of plaint under Order 7 Rule 11 is a drastic
power conferred on the court to terminate a civil action at the threshold.
Therefore, the conditions precedent to the exercise of the power are stringent
and it is especially so when rejection of plaint is sought on the ground of
limitation. When a plaintiff claims that he gained knowledge of the essential
facts giving rise to the cause of action only at a particular point of time,
the same has to be accepted at the stage of considering the application under
Order 7 Rule 11.
12.
Again as pointed out by a three-Judge Bench of this Court
in Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar [Chhotanben v. Kiritbhai
Jalkrushnabhai Thakkar, (2018) 6 SCC 422 : (2018) 3 SCC (Civ) 524] , the
plea regarding the date on which the plaintiffs gained knowledge of the
essential facts, is crucial for deciding the question whether the suit is
barred by limitation or not. It becomes a triable issue and hence the suit
cannot be thrown out at the threshold.”
Reliance
was also placed by the Supreme Court on P. Kumarakurubaran v. P.
Narayanan 2025 SCC OnLine SC 975, held that once limitation becomes a
question of law and fact, it cannot be dismissed summarily under Order VII Rule
11 proceedings:
“12.1.
… Once the date of knowledge is specifically pleaded
and forms the basis of the cause of action, the issue of limitation cannot be
decided summarily. It becomes a mixed question of law and fact, which cannot be
adjudicated at the threshold stage under Order VII Rule 11 CPC. Therefore,
rejection of the plaint on the ground of limitation without permitting the
parties to lead evidence, is legally unsustainable.”
Therefore,
the Supreme Court has adjudicated and have conclusively settled the issue on
both these counts i.e qua
Order VII Rule 11 as also the question of limitation itself, and has held that
orders of the Courts below were unsustainable and have to be set aside. Accordingly,
the orders passed by the ld District Judge, Deoghar as also the Jharkhand High
Court was set aside, being erroneous in law and the matter stood restored to
the concerned Civil Court to proceed in accordance with law. What follows
therefore is that the period of limitation shall not flow from the date of
death of the testator, but the cause of action shall be continuous and
can be exercised at any time so long as the object of the Will survives. The
right to apply would therefore accrue from the date that it becomes necessary
to apply. This obviously need not be within three years from the death of the
testator.
----
Anil
K Khaware
Founder
& Senior Associate
Societylawandjustice.com
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