unprobated unregistered will
malashree
(Querist) 02 July 2009
This query is : Resolved
The testator of the will had died during December 1990. Before his death the Testator made a will in the year November 1989. The will is unprobated and unregistered and never disclosed the will in any manner. Now recently on filing a Civil Suit during the month June 2009 a photocopy of the will has been produced before the Hon'ble Court. Out of two witnessess mentioned in the so called will one witness who was a doctor already is dead. Please clarify the following:
i. whether any time frame is fixed for probating the will.
ii. If this will is found forged in that condition what action needs to be taken.
iii. whether after conducting the forensic examination of the original will the authenticity of the will can be established?
iv. High Court / Supreme Court judgements related to unprobated unregisted and forged will may kindly be given.
A V Vishal
(Expert) 02 July 2009
Dear Malashree,
i. whether any time frame is fixed for probating the will.
Ans. No time frame for probation of will.
ii. If this will is found forged in that condition what action needs to be taken.
Ans. Then criminal complaint can be lodged for cheating, forgery and fraud under IPC.
iii. whether after conducting the forensic examination of the original will the authenticity of the will can be established?
Ans. Permission of the court must be sought for forensic examination of the documents like handwriting, signature tally and the age of the alleged document to prove the authencity of the claim.
SANJAY DIXIT
(Expert) 03 July 2009
Dear Malashree,
Pls have a look for limitation for probate.
Court : SUPREME COURT OF INDIA
CIVIL APPEAL NO. 1967 OF 2009 Arising out of SLP (C) No.16110 of 2007) Krishna Kumar Sharma ..Appellant Versus Rajesh Kumar Sharma ..Respondent
Judgement
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by the Delhi High Court which by the impugned order allowed the appeal filed by the respondent.
3. Background facts in a nutshell are as follows:
Respondent, the propounder of the registered will dated 13th July, 1989 executed by his mother, has locked horns with his step brother, Krishan Kumar Sharma, the appellant herein Smt. Sneh Prabha Sharma, the testatrix, and her husband Ram Mohan Sharma were married twice.
Respondent is the son of testatrix and Ram Mohan Sharma. Appellant is the son from the first wife of Ram Mohan Sharma. The respondent's case is this that the will dated 13th July, 1989 was made by the above said testatrix in sound disposing mind on 13th July, 1989 and it was got registered on 11th September, 1989. Smt. Sneh Prabha Sharma died on 9th July, 1990. Except the appellant, none of the other siblings of the appellant contested the
petition moved by the appellant under Section 276 of the Indian Succession Act, 1925 (in short the `Act').
The basic question before the High Court was whether Article 137 of the Indian Limitation Act, 1963 (in short the Limitation Act') applies to the facts of the present case. The High Court relied upon the judgments of Delhi High Court in S.S. Lal v. Vishnu Mitter Govil [112 (2004) Delhi Law Times 877 (DB)] and in Kanwal Malhotra v. State [125 (2005) Delhi Law 2 Times 281] to hold that Limitation Act has no application to proceedings
seeking for probate.
4. Learned counsel for the appellant submitted that the interpretation
placed by the High Court is not correct. The primary question that needs
reconsideration is whether Article 137 of the Limitation Act is applicable.
It appears that certain other aspects were considered by the High Court to which reference shall be made subsequently.
5. In The Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma [1976 (4) SCC 634] 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 case
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
sc
n.k.sarin
(Expert) 03 July 2009
I do agree with Mr.Vishal
n.k.sarin
(Expert) 03 July 2009
I do agree with Mr.Vishal
Swami Sadashiva Brahmendra Sar
(Expert) 03 July 2009
Mr Vishal and Mr Dixit both are right. Advise of mr vishal on limitation should be read in the light of judgment provided by mr Dixit which sumarises the law on the point 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 7 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".
