Time limit for probate
YATIN
(Querist) 28 September 2012
This query is : Resolved
Sir
WILL of my father was executed in Mumbai 10 years back. Probate was not taken as there was family understanding. Now need to probate has arisen due to family dispute. There is confusion. Some lawyers say probate has no time limit for applying as held by many high courts. Some say supreme court has held that limitation act applies to probate because no specific time limit has been prescribed for it. As laymen I am confused. Could experts please clarify the picture as to whether there is any time limit to apply for probate?
ajay sethi
(Expert) 28 September 2012
no time limit for applying for probate . since there were no disputes you did not apply for probate . make application now . preferbaly probate application should be made within 3 years . you have to satisfactory explain the resaons why you delayed filing application for probate .
ajay sethi
(Expert) 28 September 2012
HIGH COURT OF JUDICATURE OF ALLAHABAD
Court No. 9.
Testamentary Case No. 28 of 2005.
Ram Singh Vs. Smt. Laxmi Vajpayee
Hon. Sunil Ambwani, J.
Heard Sri P.N. Saxena, Senior Advocate assisted by Sri Amit Saxena for petitioner for Probate/ Letters of Administration of Will dated 1.10.1997 executed by Late Pt. Triyugi Narain alias Kamlapati (deceased) who is alleged to have died on 8.10.1997.
A perusal of the will shows that it does not require execution and has only bequeathed the property in favour of the applicant.
In respect of the same deceased, five wills are under adjudication in this Court and that this case was connected with Testamentary Suit No. 2 of 1998, 15 of 1999, 6 of 2000 and 7 of 2000 and a petitioner by the Administrator General namely Testamentary Suit No. 26 of 2005.
Time was given to the learned counsel for the petitioner to explain the delay in filing this application specially when five more petitions were pending in respect of the wills made by the same deceased, with conflicting interest.
The applicant Sri Ram Singh has not offered any good and sufficient explanation for the delay in filing the application for Letters of Administration. Since the will does not require execution the prayer could only be made for Letters of Administration and not for probate.
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It has been held by me, after considering the entire case law in the matter, in T.C. No. 28 of 1997 in re: Begum Shanti Tufail Ahmad Khan that Article 137 in the schedule appended to The Limitation Act, 1963 is applicable to the proceedings for grant of Letters of Administration. The relevant portion in the judgment is quoted as below:
"16. The question of limitation, was also argued at length. The alleged Will was executed by late Begum Shanti Tufail Khan on 23.5.1974. She died on 9.10.1976. The applicant filed the testamentary case on 18.9.1997 alleging in para 11 that the Will was handed over to Yusuf Ali Khan son of Kamaluddin Khan, who is also an attesting witness to the Will and that Sri Yusuf Ali Khan in pursuance to the instructions of the testatrix handed over the Will to the petitioner on 15.7.1997. In his affidavit (Paper No. A-3/30) filed along with testamentary case Sri Yusuf Ali Khan as an attesting witness has stated in para 5 "that the said will was not traced out within time by the deponent.When the same was traced out the deponent handed over the same to the petitioner."
17. The explanation of delay offered in para 11 of the petition and para 5 of the affidavit of Sri Yusuf Ali Khan is far from satisfactory. There is no other assertion or statement on record explaining the delay of about 20 years in filing the petition during which time the assets of Begum Shanti Tufail Khan were under a spate of litigation and her alleged properties were changing hands on execution of lease deeds and transfer deeds.
18. The Indian Succession Act 1925 does not provide for any limitation to file a petition for probate. Sri J. Nagar, Administrator General states that in the circumstances Article 137 of
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the Limitation Act 1963 would be applicable, which is residuary clause and provides that for any other application for which no period of limitation is provided elsewhere, the period of limitation will be three years, when the right to apply accrues. It is submitted by Sri S.K. Misra that in the case of will where no probate was granted, the cause of action to obtain probate accrues on every date until the will is probated. He submits that the residuary clause under Article 137 of the Limitation Act 1963 has no application to proceedings of probate.
19. An application may be given for probate of the Will by executer or any other beneficiaries where the Will provides for its execution. In cases of Will where no executer is named in the Will, nor the Will requires its execution by any other person an application is maintainable for Letters of Administration. In Kerela State Electricity Board Trivendrum vs. T.P. Kunhaliumma AIR 1977 SC 282 the Supreme Court held that where by statutes matters are covered for determination by a court, with no further provision, the necessary implication is that the court will determine the matter. The application of Article 137 is not confined to the Code of Civil Procedure. The words ''any other application' under Article 137 cannot be said on the principle of edjusdem generis to be obligations under the Code of Civil Procedure other than those mentioned in Part-I of the Third Division. Any other application under Article 137 would be petition or any application under any Act, but it has to be an application to a Court for a reason that Section 4 and 5 of the Limitation Act speak of expiry of prescribed period when the Court is closed. An explanation of prescribed period if an applicant or appellant satisfy the Court that he had sufficient cause for not preferring the appeal or making application during such period. In Smt. Shakuntala Devi vs. Ladley Mohan Mathur, 1986 AWC 120 this Court held that no
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limitation is provided for seeking the probate of a duly executed will. The Court took into account the delay as suspicious circumstances of not producing the Will. The plea of limitation and applicability of Article 137 of the Limitation Act was neither raised nor decided. In Smt. Leela Karwal vs. J Karwal and others AIR 1983 Allahabad 386, this Court observed in para 58 that there was no limitation prescribed for filing an application for grant of Letters of Administration. The delay in filing the petition is a matter to be considered while adjudicating upon the validity of the will in respect of which the grant of Letters of Administration has been sought. But the mere fact that a petition is filed after 13 years, cannot be a ground for holding it to be non-maintainable in law.
20. In Ramanand Thakur vs. Parmanand Thakur AIR 1982 Patna 87 it was observed that though Article 137 of the Limitation Act applies to any petition or application filed under any Act. So far as applications for grant of a probate or Letters of Administration are concerned, they are not governed by any Article of Limitation Act. The reasons given in the judgements are that in case an application for grant of probate or Letters of Administration it is difficult to find out as to when the right to apply accrues and unless that date can be fixed, there is no question of starting of the period of limitation. The right to apply for a probate accrues from day-to-day so long as the will remains unprobated. The Patna High Court relied upon the judgement of Calcutta High Court in Kalinath vs. Nagendra Nath AIR 1959 Calcutta 81 it was under the old limitation act in which the residuary Article 181 was couched in a different language in Article 181 of the Indian Limitation Act 1901. The applications for which no limitation is provided elsewhere in the schedule or by Section 48 of the Code of Civil Procedure the In the end learned counsel for the bank submits that the remeperiod of limitation was three years, when the
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right to appeal accrues.
21. In the matter of Estate of Late Gurcharan Dass Puri AIR 1987 Punjab and Haryana 122 the Punjab High Court relied upon the period of limitation prescribed under Article 137 of the Limitation Act 1963 and distinguishing Ramanand's case (AIR 1982 Patna 87) held that Article 137 of the Limitation Act 1963, will govern the petition for obtaining Letters of Administration. In John Feransic Anthony Gonsalves vs. Agnesmary Conception Rebell, AIR 2001 Bombay 372, the Bombay High Court did not frame any issue with regard to the applicability of the Limitation Act. It, however, held that the delay of 20 years will dis-entitle the legatee from executing the same and that relying upon Section 141 of the Indian Succession Act 1923 which provides that if a Legatee is bequeathed to a person whose name is given as an executer of the will he shall not take the lessee unless he proves the will or signifies, manifests an intention to act an executor and held that the delay of 20 years established that the executor had manifested his intention not to act as an executor.
22. The law of limitation is a law of repose based on rules of estoppel. It serves an important purpose of bringing finality to state of affairs which have prevailed in the knowledge of parties for sufficiently long period of time. The life must go on and that past events should not intervene to bring uncertainty to the common course of events which engulf the citizen. The law of limitation affirms free and uninterrupted flow of events. Where a legal right has not been enforced, for long period of time, it should not be permitted to be put into motion to disturb the normal events. The residuary Article 137 as interrupted in the Kerela State Electricity Board Trivendrum (supra) applies to all transactions where the limitation is not
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specifically provided. It fixes a period of three years for taking action when the right to apply accrues. In cases of grant of probate or Letters of Administration of the deceased expressing his/her will, for arrangements of his/her affairs after his/her death the propounder must bring an action for grant of Letters of Administration or probate as early as possible. The applicability of residuary clause under the Limitation Act serves this purpose. The properties cannot be left un-administered for a longer period of time. These may change hands by transfer bringing its administration to uncertainty and disturb the rights which may accrue in favour of such transferee. The present case offers an example of such facts. In the twenty years in which the will was not brought into light the properties in certain states have changed hands many times. The pro-pounder therefore is under obligation to satisfy the court that he has no knowledge about the execution of the will."
The petitioner has not been able to satisfactorily explain the delay beyond three years. There is absolutely no pleadings as to when the applicant came to know about the execution of the will. The pleadings go to show that he had knowledge of the will from the date it was executed and had full knowledge of the date of death of Late Pt. Triyugi Narain.
For the aforesaid reasons I find that this application is barred by limitation. Sri P.N. Saxena Senior Advocate, then made a prayer that this application should be treated as caveat in other applications on the ground that there is a will in favour of the applicant, the validity of which has not been considered by the Court. The prayer is allowed. The Testamentary Case is disposed of with the directions that this petition shall be treated as caveat in other testamentary suits.
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Sri J. Nagar states that the objections in testamentary case no. 28 of 2005 may be treated as rejoinder affidavit to the caveat of Sri Ram Singh. Let a copy be served on all other applicants namely in testamentary suit no. 2 of 1998, 15 of 1999, 6 of 2000, 7 of 2000 and let the plaintiffs in these suits file replication to the caveat of Sri Ram Singh.
Dt. 8.2.2006.
BM/-
Anirudh
(Expert) 28 September 2012
Please see the following decision of the Supreme Court in the year 2008.
MANU/SC/7451/2008
Equivalent Citation: AIR2008SC2058, 2009(4)ALT23(SC), 2008 2 AWC(Supp)2024SC, (SCSuppl)2008(2)CHN197, 2008(2)CTC850, 2008GLH(2)591, 2008GLH(591)2, 2008(2)KLT296(SC), (2008)4MLJ239(SC), 2008 105 RD262, 2008(6)SCALE112, (2008)8SCC463, 2008(8)UC865citation image
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 2464 of 2008 (Arising out of SLP(C) No. 12488/2006)
Decided On: 03.04.2008
Appellants: Kunvarjeet Singh Khandpur
Vs.
Respondent: Kirandeep Kaur and Ors.
Hon'ble Judges:
Dr. Arijit Pasayat and P. Sathasivam , JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Sanjeev Sachdeva, Chetan Chopra and Saurabh Sharma, Advs
For Respondents/Defendant: V. Shekhar, Sr. Adv., S. Ganesh, Abhigya and N. Annapoorani, Advs.
Subject: Family
Subject: Property
Acts/Rules/Orders:
Indian Succession Act, 1925 - Section 2, Indian Succession Act, 1925 - Section 232, Indian Succession Act, 1925 - Section 264, Indian Succession Act, 1925 - Section 278; Limitation Act, 1963 - Section 4, Limitation Act, 1963 - Section 5, Limitation Act, 1963 - Scheudle - Article 113, Limitation Act, 1963 - Scheudle - Article 120, Limitation Act, 1963 - Scheudle - Article 137; Limitation Act, 1908 - Scheudle - Article 181; Code of Civil Procedure (CPC), 1908; Telegraph Act
Cases Referred:
S.S. Lal v. Vishnu Mittal Goel MANU/DE/0595/2004; Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma MANU/SC/0323/1976; S.S. Rathore v. State of M.P. MANU/SC/0002/1990; Pierce Leslie & Co. Ltd. v. Violet Ouchterlony WapshareMANU/SC/0221/1968; S. Krishnaswami and etc. etc. v. E. Ramiah MANU/TN/0039/1991
Prior History:
From the final Judgment and Order dated 24.11.2005 of the High Court of Delhi at New Delhi in Civil Revision No. 156 of 2005
Disposition:
Appeal dismissed
Citing Reference:
Discussed
4
Mentioned
1
Case Note:
Indian Succession Act, 1925-- Section 278--Limitation Act, 1963--Article 137--Grant of letter of administration--Plea of Limitation--Determination of--Appreciation of evidence--Testator expired on 5.10.1985--Probate filed on 9.8.1999--Letter of administration filed on 7.8.2002--Consideration of--Held--Provision of Article 137 of Limitation Act is applicable-- High Court was not correct in observing that the application for grant of probate or letter of Administration is not covered by Article 137 of Limitation Act. [Para--15 and 18]
Ratio Decidendi:
Provisions of Limitation Act is clearly applicable to petition for grant of Letters of Administration
JUDGMENT
Arijit Pasayat, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a learned Single Judge of the Delhi High Court dismissing the Civil Revision Petition filed by the appellant. By the impugned order the view expressed by learned Additional District Judge deciding a preliminary issue was upheld. Learned Additional District Judge had held that the petition for grant of Letters of Administration of Will dated 9.9.1991 purportedly executed by late Sh. Mohinder Singh Khandpur was not barred by limitation and was maintainable.
3. The factual position needs to be noted in a nutshell as an interesting question of law is involved for the resolution of which factual details are not relevant.
4. Appellant's stand all through was that the testator- Mohinder Singh Khandpur has expired on 5.10.1995 and the petition under Section 278 of the Indian Succession Act, 1925 (in short the 'Act') for grant of Letters of Administration was filed on 7.8.2002, and therefore, the same was barred by limitation. Learned Additional District Judge after referring to Section 232 of the Act held that the cause of action in favour of the respondent Nos. 1 to 3 had arisen only when the Probate Petition No. 22 of 1996 filed by Ms. Nirmal Jeet Kaur- respondent No. 5 was withdrawn on 9.8.1999 and therefore the Petition for grant of Letters of Administration filed on 7.8.2002 was filed within three years and therefore was within time.
5. The order was challenged before the High Court. Appellant's stand was that Article 137 of the Limitation Act, 1963 (in short 'Limitation Act') had application. It was submitted that Article 137 of the Limitation Act has clear application and the application for grant of letters of Administration was filed beyond the speculated time.
6. The High Court observed that Article 137 of the Limitation Act does not apply to proceedings or grant of Probate/Letters of Administration and therefore the view of the learned Additional District Judge was correct. Reliance was placed on a Division Bench of the Delhi High Court in the case of S.S. Lal v. Vishnu Mittal Goel MANU/DE/0595/2004 : 112(2004)DLT877
7. The High Court noted that there was no dispute that Mrs. Nirmal Jeet Kaur had filed a Probate Petition in the court of District Judge which was numbered as Probate Case No. 22 of 1996 for grant of Probate in respect of will dated 9.9.1991 after the death of Mohinder Singh Khandpur. The said petition was withdrawn on 9.8.1999. An application was filed by the present respondent Nos. 1 to 3 for being transposed as applicants in the application but the said application was dismissed with right and liberty granted to the present respondent nos. 1 to 3 to initiate appropriate proceedings.
8. In support of the appeal, learned Counsel for the appellant submitted that the High Court's view that Article 137 of the Limitation Act was not applicable is incorrect. It is submitted that right to apply in terms of Article 137 accrued when there was a dispute about genuineness of the Will. Therefore it was submitted that the view of the High Court is clearly unsustainable.
9. On the other hand, learned Counsel for the respondents submitted that the right to apply for grant of Letters of Administrations is a continuing right and the starting point is the happening of an event. In the instant case, after the petition for grant of probate was withdrawn the event arose. Further while permitting withdrawal, liberty was granted to the present respondent nos. 1 to 3 to initiate appropriate proceedings.
10. Two questions need to be addressed in this appeal. Firstly, about the applicability of Article 137 of the Limitation Act and secondly even if it is applicable whether the petition was within time.
11. In The Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma MANU/SC/0323/1976 : [1977]1SCR996 it was inter alia observed as follows:
18. The alteration of the division as well as the change in the collocation of words in Article 137 of the Limitation Act, 1963 compared with Article 181 of the 1908 Limitation Act shows that applications contemplated under Article 137 are not applications confined to the Code of Civil Procedure. In the 1908 Limitation Act there was no division between applications in specified cases and other applications as in the 1963 Limitation Act. The words "any other application" under Article 137 cannot be said on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act. But it has to be an application to a court for the reason that Sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when court is closed and extension of prescribed period if applicant or the appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application during such period.
22. The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil court. With respect we differ from the view taken by the two- judge bench of this Court in Athani Municipal Council case2 and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a court. The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application falling within the scope of Article 137 of the 1963 Limitation Act.
12. In terms of the aforesaid judgment any application to Civil Court under the Act is covered by Article 137. The application is made in terms of Section 264 of the Act to the District Judge. Section 2(bb) of the Act defines the District Judge to be Judge of Principal Civil Court.
13. Further in S.S. Rathore v. State of M.P. MANU/SC/0002/1990 : 1989(43)ELT790(SC) it was inter-alia stated as follows:
5. Appellant's counsel placed before us the residuary Article 113 and had referred to a few decisions of some High Courts where in a situation as here reliance was placed on that article. It is unnecessary to refer to those decisions as on the authority of the judgment of this Court in the case of Pierce Leslie & Co. Ltd. v. MANU/SC/0221/1968 : Violet Ouchterlony Wapshare [1969]3SCR203 3 it must be held that Article 113 of the Act of 1963, corresponding to Article 120 of the old Act, is a general one and would apply to suits to which no other article in the schedule applies.
14. Article 137 of the Limitation Act reads as follows:
137. Description of application: Any other application for which no period of limitation is provided elsewhere in the Division.
Period of Limitation: Three Years Time from which period begins to run: When the right to apply accrues.
The crucial expression in the petition is "right to apply". In view of what has been stated by this Court, Article 137 is clearly applicable to the petition for grant of Letters of Administration. As rightly observed by the High Court in such proceedings the application merely seeks recognition from the Court to perform a duty because of the nature of the proceedings it is a continuing right. The Division Bench of the Delhi High Court referred to several decisions. One of them was S. Krishnaswami and etc. etc. v. MANU/TN/0039/1991 : E. Ramiah AIR1991Mad214 of the said judgment it was noted as follows:
17. In a proceeding, or in other words, in an application filed for grant of probate or letters of administration, no right is asserted or claimed by the applicant. The applicant only seeks recognition of the Court to perform a duty. Probate or letter of Administration issued by a competent Court is conclusive proof of the legal character throughout the world. An assessment of the relevant provisions of the Indian Succession Act, 1925 does not convey a meaning that by the Proceedings filed for grant of probate or letters of administration, no rights of the applicant are settled or secured in the legal sense. The author of the testament has cast the duty with regard to the administration of his estate, and the applicant for probate or letters of administration only seeks the permission of the Court to perform that duty. There is only a seeking of recognition from the Court to perform the duty. That duty is only moral and it is not legal. There is no law which compels the applicant to file the proceedings for probate or letters of administration. With a view to discharge the moral duty, the applicant seeks recognition from the Court to perform the duty. It will be legitimate to conclude that the proceedings filed for grant of probate or letters of administration is not an action in law. Hence, it is very difficult to and it will not be in order to construe the proceedings for grant of probate or letters of administration as applications coming within the meaning of an 'application' under Article 137 of the Limitation Act, 1963.
15. Though the nature of the petition has been rightly described by the High Court, it was not correct in observing that the application for grant of probate or letters of Administration is not covered by Article 137 of the Limitation Act. Same is not correct in view of what has been stated in The Kerala State Electricity Board's case (supra).
16. Similarly reference was made to a decision of the Bombay High Court's case in Vasudev Daulatram Sadarangani v. MANU/MH/0222/1983 Sajni Prem Lalwani : AIR1983Bom268 . Para 16 reads as follows:
16. Rejecting Mr. Dalapatrai's contention, I summarise my conclusions thus:
(a) under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made;
(b) the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted;
(c) 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;
(d) the right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years form the date of he deceased's death.
(e) delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay, greater would be the suspicion;
(f) such delay must be explained, but cannot be equated with the absolute bar of limitation; and
(g) once execution and attestation are proved, suspicion of delay no longer operates.
17. The conclusion 'b' is not correct while the conclusion 'c' is the correct position of law.
18. In view of the factual scenario, the right to apply actually arose on 9.8.1999 when the proceedings were withdrawn by Smt. Nirmal Jeet Kaur. Since the petition was filed within three years, the same was within time and therefore the appeal is without merit, deserves dismissal, which we direct but in the circumstances without any order as to costs.
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Devajyoti Barman
(Expert) 28 September 2012
The Indian Succession Act nowhere makes taking of probate a time bound act.So apply it at your convenience.
R.K Nanda
(Expert) 28 September 2012
there is no time limit for it.
prabhakar singh
(Expert) 29 September 2012
According to law will is a doubtful document.
delay in applying aggravates the doubt but once execution proved beyond doubt the question of delay falls through.No limitation
specifically prescribed.
Raj Kumar Makkad
(Expert) 30 September 2012
The referred citations put much reliance on every aspect of delay and if we go through the facts of your case, it seems that the will is totally doubtful and requires no reliance at all.
