New Delhi: The Supreme Court has held that an application for probate of a Will need not necessarily be filed within three years of the testator's death, and that the right to apply for probate accrues only when it becomes necessary to do so, such as when an action hostile to the position established by the Will is taken.
A Bench of Justices Sanjay Karol and Vipul M. Pancholi set aside concurrent orders of the Civil Court and the Jharkhand High Court that had rejected a probate application on the ground of delay.
The executor, Bhudeo Prasad Singh, had applied on 31st August 2005 for probate of a Will dated 15th April 1995 executed by one Shrilal Singhania, in favour of the appellant, Sanjay Sharma @ Sanjay Bhardwaj. On an application filed by the objectors under Order VII Rule 11 of the Code of Civil Procedure, 1908, the District Judge, Deoghar, rejected the probate application under Sections 222 and 276 of the Indian Succession Act, 1925, holding the decade-long delay since the testator's death to be unexplained. The Jharkhand High Court, in Miscellaneous Appeal No.153 of 2012, upheld this view, prompting the present appeal.
Since the Indian Succession Act prescribes no specific limitation period for a probate application, the Supreme Court held that the residuary provision, Article 137 of the Limitation Act, 1963, applies, which provides a period of three years running from the date the right to apply accrues. The courts below had proceeded on the basis that this period began from the date of the testator's death, a view the Bench rejected, relying on the Bombay High Court's decision in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani, as approved by the Supreme Court in Kunvarjeet Singh Khandpur v. Kirandeep Kaur and Sameer Kapoor v. State.
“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.”
Applying this position, the Court held that the right to apply for probate in the present case accrued only when the respondents took action hostile to the Will, namely the execution of a General Power of Attorney by the testator's wife, Laxmi Devi, on 8th August 2005. Since the probate application was filed on 31st August 2005, shortly thereafter, it was held to be within limitation.
The Court also examined whether, in proceedings under Order VII Rule 11 CPC, it was open to the High Court to return findings touching the merits and genuineness of the Will itself. Holding that it was not, the Bench observed that such questions could not be adjudicated in summary proceedings without appreciation of evidence, relying on Salim D. Agboatwala v. Shamalji Oddhavji Thakkar and the recent decision in P. Kumarakurubaran v. P. Narayanan.
“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.”
Holding that the courts below had erred in law on both counts, the Supreme Court set aside the order dated 31st July 2012 passed by the District Judge, Deoghar, and the judgment dated 28th April 2022 passed by the High Court of Jharkhand, allowed the appeal, and restored the matter to the concerned Civil Court to proceed in accordance with law.
Case Title: Sanjay Sharma @ Sanjay Bhardwaj vs. Krishnadhan Khaware and Ors.
