“Law Of Wills”- Questions & Answers By Justice V Ramkumar [Part-XIV]

Q.66 Is not the applicant exempted from executing a bond in a case where the proceedings are non-contentious ?Ans. No. Exemption from executing the bond on the ground that the proceedings were non-contentious, is not contemplated by Rule 18 of the Succession Rules, 1968 (Kerala). (Vide In Re Mariamma Thomas (2006) 2 KLT 11 = 2006 KHC 529 – K.M. Joseph - J).Q.67 What is the consequence of granting a Probate or Letters of Administration ? Ans. As per Section 216 of the Indian Succession Act, 1925, after the grant of Probate or Letters of Administration to a person, such person alone shall have the power to sue or prosecute any suit or otherwise act as representative of the diseased throughout the State in which the same may have been granted, until such Probate or Letters of Administration has or have been recalled or revoked.Q.68 What is the period of limitation, if any, for filing an application for “Probate” or for “Letters of Administration” or for filing an application for cancellation of “Probate” or “Letters of Administration” ?In para 28 of Kurian @ Jacob v. Chellamma John 2017 (5) KHC 257 – P. N. Ravindran, D. Seshadri Naidu – JJ, it is observed as follows:- “From the above precedential position, we can deduce that the period of limitation under Art.137 of the Limitation Act, 1963, applies to an application for probate or letters of administration under the Indian Succession Act, 1925. And this period runs from the time "the right to apply accrues", which is not necessarily from the date of the testator's death. For the right to apply for probate or letters of administration is a continuing right, and reckoning point is the happening of an event triggering the cause of action: a dispute involving a legatee's rights.” Residuary Article 137 of the Limitation Act, 1963 applies to a petition or application filed under any law before a Civil Court. The said Article is not confined to applications contemplated under the CPC alone. (Vide Krishna Kumar Sharma v. Rajesh Kumar Sharma (2009) 11 SCC 537 = AIR 2009 SC 3247 – Dr. Arijit Pasayat, Asok Kumar Ganguly - JJ). This author also had followed suit in Francis v. Cherupushpam (2009) 3 KHC 53 = (2009) 3 KLT 479 – V. Ramkumar – J, that Article 137 of the Limitation Act, 1963 applies in the case of an application for Probate or Letters of Administration. Following the decisions in Kerala State Electricity Board, Trivandrum v. T. P. Kunhaliumma (1976) 4 SCC 634 = AIR 1977 SC 282 – Ray – CJI, Beg, Shingal – JJ and Kunvarjeet Singh Khandpur v. Kirandeep Kaur (2008) 8 SCC 463 = AIR 2008 SC 2058 – Dr. Arijit Pasayat, P. Sathasivam - JJ, a 3 Judge Bench of the Supreme Court in Ramesh Nivrutti Bhagwat v. Dr. Surendra Manohar Parakhe AIR 2019 SC 4948 – Arun Mishra, Vineet Saran, S. Ravindra Bhat – JJ, held that even though the Indian Succession Act, 1925 does not prescribe a specific period of limitation for the grant of probate or for moving an application for cancellation of Probate or Letters of Administration, since the application is to a Court, the residuary entry to Article 137 of the Limitation Act, 1963 will apply and the limitation for making such application will be 3 years from the date on which the right to apply accrues. Date of knowledge of the Will or Order, as the case may be, can be relevant for reckoning the period of limitation. “Right to apply” accrues not from the date of death of the testator but when challenge is made to the Will or dispute arises in relation thereto. (Vide Hanuman Prasad Agarwal etc v. Satyanarain Agarwal AIR 2020 Cal. 246 = 2020 KHC 4664 (Calcutta) – Moushumi Bhattacharya - J. Q. 69 What is the scope of inquiry by the Testamentary Court (i.e. the Court dealing with an application for Probate or Letters of Administration) ? The Probate Court is only concerned with the question as to whether the document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution, the testator had a sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. (Vide Ishwardeo Narain Singh v. Kamta Devi AIR 1954 SC 280 = 1954 KHC 462 SC) – Mehr Chand Mahajan, S. R. Das - JJ. The question of title of the testator in respect of the property dealt with by the Will is foreign to the scope of enquiry by the testamentary Court. (Vide Madavi v. Sree Rama Varma AIR 1969 Kerala 256 – V. G. Nambiyar - J). Question of title in respect of the property dealt with by the Will need not be decided by the testamentary Court. (Vide Baker Fenn v. Biju 1987 (2) KLT SN 26 P. 20 - S. Padmanabhan –J). A claim based on title or possession must be determined in a proper suit. (Vide Thomas V. Jacob v. Varghese 1987 (1) KLT 319 = AIR 1987 Kerala 193 (DB). Probate Court is not to embark upon disputed...

“Law Of Wills”- Questions & Answers By Justice V Ramkumar [Part-XIV]

Justice V Ramkumar

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