Case Note & Summary
The appeal arises from a probate application filed by Bhudeo Prasad Singh for the probate of a Will dated 15th April 1995 executed by Shrilal Singhania. The application was filed on 31st August 2005 before the District Judge, Deoghar. The objectors-respondents filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) seeking rejection of the probate application on the ground that it was barred by limitation. The District Judge, by order dated 31st July 2012, allowed the application and rejected the probate petition under Sections 222 and 276 of the Indian Succession Act, 1925 (ISA). The appellant, Sanjay Sharma @ Sanjay Bhardwaj, who claimed through the executor, filed an appeal before the High Court in MA No.153 of 2012, which was dismissed by judgment dated 28th April 2022, affirming the trial court's order. Hence, the appellant approached the Supreme Court. The limited issue before the Supreme Court was whether the probate application is barred by limitation. The Court noted that the ISA does not prescribe any specific period of limitation for filing a probate application. Therefore, the residuary provision of the Limitation Act, 1963, i.e., Article 137, which provides a three-year period from when the right to apply accrues, would apply. However, the Court held that the right to apply for probate is a continuing right that accrues on the death of the testator and continues until the executor applies. The Court observed that the question of limitation in probate matters is a mixed question of fact and law that cannot be decided summarily under Order VII Rule 11 CPC without trial. The Court set aside the orders of the District Judge and the High Court and remanded the matter to the District Judge for fresh consideration on merits, directing that the probate application be restored to its original number and decided afresh in accordance with law, without being influenced by the earlier orders. The appeal was allowed.
Headnote
A) Succession Law - Probate - Limitation - Indian Succession Act, 1925, Sections 222, 276 - Limitation Act, 1963, Article 137 - The Indian Succession Act does not prescribe any period of limitation for filing a probate application. The residuary Article 137 of the Limitation Act, 1963 applies, providing a three-year period from when the right to apply accrues. However, the right to apply for probate is a continuing right that accrues on the death of the testator and continues until the executor applies. The courts below erred in rejecting the probate application as barred by limitation under Order VII Rule 11 CPC. (Paras 3-5) B) Civil Procedure - Rejection of Plaint - Order VII Rule 11 CPC - Limitation - The rejection of a probate application under Order VII Rule 11 CPC on the ground of limitation is not sustainable when the application is not ex facie barred by limitation. The question of limitation in probate matters is a mixed question of fact and law that requires trial. (Paras 2, 5) C) Succession Law - Probate - Right to Apply - Indian Succession Act, 1925, Section 222 - The right of an executor to apply for probate is a continuing right that does not extinguish with the passage of time. The executor can apply at any time after the testator's death, and the limitation period under Article 137 of the Limitation Act, 1963 begins only when the right to apply accrues, which is on the death of the testator, but the application is not barred if filed within a reasonable time. (Paras 3-5)
Issue of Consideration
Whether an application for probate is barred by the law of limitation under the Limitation Act, 1963, and whether the courts below erred in rejecting the probate application under Order VII Rule 11 CPC on grounds of limitation.
Final Decision
The Supreme Court allowed the appeal, set aside the orders of the District Judge dated 31st July 2012 and the High Court judgment dated 28th April 2022, and remanded the matter to the District Judge for fresh consideration on merits. The probate application was directed to be restored to its original number and decided afresh in accordance with law, without being influenced by the earlier orders.
Law Points
- Probate application not governed by limitation period under Indian Succession Act
- 1925
- Article 137 of Limitation Act
- 1963 applies residually
- right to apply for probate accrues when executor becomes entitled
- Order VII Rule 11 CPC not applicable for limitation bar in probate matters
