The Calcutta High Court has observed that the limitation period to apply for probate starts not from the date of death of the testator but from which the dispute arises or when it becomes necessary to apply for grant of probate.
Justice Moushumi Bhattacharya observed that the 3 years limitation is not to be counted from the date of death of the testator. The court was considering an appeal against an order rejecting plaintiff's application for grant of probate.
The issue in this case is regarding the interpretation of the expression whether the 3 years commencing from 'when the right to apply accrues' under Article 137 of the Limitation Act, 1963. Referring to this provision, the Court said:
Although Article 137 applies in cases of grant of probate, the right to apply accrues not from the date of death of the testator but from which the dispute arises or when it becomes necessary to apply for grant of probate. In other words, a party may apply when a challenge is made to a Will or a dispute arises in relation thereto. It is also clear that there is no outer limit for filing an application for probate and the time starts running from the date when the right to apply accrues.
The Court also noted that, while section 293 of the Indian Succession Act provides for a cooling-off period of expiration of 7 clear days from the day of the testator's or intestate's death before a probate of a Will can be granted (and 14 clear days for a letter of administration), there is no outer limit within which an executor has to take out an application for grant of probate. It added:
"The absence of an end-point within which such an application has to be filed is a deliberate legislative omission pointing to a larger rationale underlying cases involving grant of probate. First, the date of death of the testator cannot fix the executor with a simultaneous obligation to apply for probate as it may not be possible for the executor to know of the testator's death in every case. The implementation of the wishes of a testator 12 in terms of giving effect to the Will cannot be defeated merely on account of the delay on the part of the executor in applying for a probate. Second, in an application for grant of probate, no right is claimed by the applicant. The applicant only seeks recognition of the court to perform a duty, namely the duty cast by the author of the testament upon the executor with regard to administration of his estate. Third, except section 217 which regulates applications for probates/letters of Administration under Part IX of the 1925 Act, there is no provision in the Succession Act which compels the executor to file for grant of probate. Hence, if the right to apply for probate is seen as a continuing right, construing Article 137 as bringing down the curtain to such a right after 3 years cannot stand to reason and would frustrate the very object of the law preserving the wishes of a testator. Importing the provisions of the Limitation Act in a manner which would frustrate the last wish of the deceased cannot also be the intention of the Legislature since the decision of a Probate Court is a judgment in rem not only binding upon the parties to the probate proceeding but binding on the whole world. Till the order granted by the probate court remains in force it is conclusive as to the execution and validity of the Will till the grant of probate is revoked. Section 41 of the Evidence Act provides that an order of a competent court in exercise of probate jurisdiction is conclusive proof of the genuineness of the Will"
The court also took note of a recent Supreme Court judgment in Shakti Bhog Ford Industries Vs. Central Bank of India, in which it was observed that, in cases governed by Article 113 of the Limitation Act, the period of limitation begins to run "when the right to sue accrues" and not when the right to sue "first" accrues.
Case name: Hanuman Prasad Agarwal vs. Satyanarain AgarwalCase no.: G.A. No. 990 of 2018 With T.S. No. 7 of 2016Coram: Justice Moushumi Bhattacharya
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