Is Application For Probate Of Will Time-Barred If Not Filed Within 3 Years Of Testator's Death? Supreme Court Answers

The Supreme Court has held the probate of Will need not be necessarily filed within three years of the testator's death. The Court added that right to apply for probate accrues when it becomes necessary to do so i.e., when an action hostile to the position established by the Will was taken.

“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.”, observed a bench of Justice Sanjay Karol and Justice Vipul M Pancholi.

The bench set aside the concurrent findings of the trial court and Jharkhand High Court which had rejected the probate application merely because it was filed beyond the period of three years from the death of the testator.

The case involves an application for probate of a Will dated April 15, 1995, executed by one Shrilal Singhania, who passed away on June 7, 1995. The application was filed by Bhudeo Prasad Singh, the executor named in the Will, on August 31, 2005, more than a decade after the testator's death.

The objectors-respondents filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908, contending that the probate application was barred by limitation. The trial court accepted this contention and rejected the probate application under Sections 222 and 276 of the Indian Succession Act, 1925.

The Jharkhand High Court dismissed the appeal, upholding the Civil Court's findings leading to the present appeal before the Supreme Court.

Allowing the appeal, the judgment authored by Justice Karol rejected an argument that an application for probate of Will needs to be filed within three years of the testator's death.

The Court said that since no timeline is prescribed under the Indian Succession Act for filing of an application of a probate of a Will, the three years limitation period prescribed under Article 163 of the Limitation Act, 1963 will be applicable; however, the same would be reckoned from the date when the opposite party takes an action hostile to the position established by Will.

Applying the law, the Court observed:

“…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.”

Reference was drawn to the case of P. Kumarakurubaran v. P. Narayanan, 2025 LiveLaw (SC) 509, where it was held that when the question of limitation involves disputed facts, such issues cannot be decided at the stage of Order VII Rule 11 CPC. The court noted that the High Court erred in summarily dismissing the suit despite there was existing a dispute over a limitation period, which is a mixed question of fact and law.

“On both these counts qua Order VII Rule 11 as also the question of limitation itself, the judgments and orders of the Courts below have to be set aside. The order dated 31st July 2012 passed by the District, Deoghar, and the judgment dated 28th April 2022 passed by the High Court of Jharkhand are set aside. As having plainly erred in law, the appeal is allowed. The matter stands restored to the concerned Civil Court to proceed in accordance with law.”, the court held.

Cause title: SANJAY SHARMA @ SANJAY BHARDWAJ VERSUS KRISHNADHAN KHAWARE AND ORS.

Citation : 2026 LiveLaw (SC) 683

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