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

“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.

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 questions of title and possession. (Vide Pappoo v. Kuruvilla 1994 (2) KLT 278 – K. Sreedharan - J). The Probate Court has no jurisdiction to ascertain whether the testator had title to the property or not. (Vide Kuruvila v. Sosamma 2000 (2) KLT 399 = AIR 2000 Kerala 246 – K. K. Usha, R. Rajendra Babu - JJ; Amita Gurunath Deshpande v. Arvind Shripad Deshpande AIR 2020 NOC 632 = 2020 KHC 3797 (Karnataka) – G. Narendar, B. M. Shyam Prasad - JJ.

“On a conspectus of the above legal scenario we conclude that the Probate Court has been conferred with exclusive jurisdiction to grant probate of the Will of the deceased annexed to the petition (suit); on grant or refusal thereof, it has to preserve the original Will produced before it. The grant of probate is final subject to appeal, if any, or revocation if made in terms of the provisions of the Succession Act. It is a judgment in rem and conclusive and binds not only the parties but also the entire world. The award deprives the parties of statutory right of appeal provided under S.299. Thus the necessary conclusion is that the Probate Court alone has exclusive jurisdiction and the Civil Court on original side or the Arbitrator does not get jurisdiction even if consented to by the parties, to adjudicate upon the proof or validity of the Will propounded by the executrix, the applicant. It is already seen that the executrix was nominated expressly in the will is a legal representative entitled to represent the Estate` of the deceased but the heirs cannot get any probate before the Probate Court. They are entitled only to resist the claim of the executrix of the execution and genuineness of the Will. The grant of probate gives the executrix the right to represent the estate of the deceased, the subject matter in other proceedings. We make it clear that our exposition of law is only for the purpose of finding the jurisdiction of the arbitrator and not an expression of opinion on merits in the probate suit.”