LIMITATION ON FILING A PROBATE PETITION

INTRODUCTION

A probate means a copy of a Will
certified by the seal of a Court. A probate of a Will establishes the
authenticity and finality of that Will and validates all the acts of the
executors. It conclusively proves the validity of the Will; after a probate has
been granted, no claim can be raised about the genuineness or otherwise of the
Will.

One of the important questions
that often arises in relation to a probate is till when can a probate petition
be lodged? Is there a maximum time limit after the death of the testator within
which the executors must lodge the petition before the Courts? The Bombay High
Court had an occasion to consider this question in the case of Suresh
Manilal Mehta vs. Varsha Bhadresh Joshi, 2017 (1) AIR Bom R 487. Let us
examine this issue.

NECESSITY
FOR A PROBATE

The Indian Succession Act,
1925 deals with the law relating to Wills. According to this Act, no
right as an executor or a legatee can be established in any Court unless a
Court has granted a probate of the Will under which the right is claimed. This
provision applies to all Christians. In the case of any Hindu, Buddhist, Sikh
or Jain, it applies to:

(a) any Will made within the local limits of the ordinary original civil
jurisdiction of the High Courts of Madras or of Bombay, or within the
territories which were subject to the Lieutenant-Governor of Bengal;

(b) to all such Wills made outside those territories and limits so
far as it relates to immovable property situated within those territories or
limits.

Thus, for Hindus, Sikhs, Jains
and Buddhists, who are / whose immovable properties are situate outside the
territories of West Bengal or the Presidency Towns of Madras and Bombay, a
probate is not required. Similarly, where a Will is made outside Mumbai (say,
in Ahmedabad) and it makes no disposition of any immovable property in Mumbai
or other designated town, then such a Will would not require a probate.

An executor of such a Will may
need to do so only on the occurrence of a certain event, for instance, on a
suit being filed challenging that Will. However, a Will made in Mumbai or
pertaining to property in Mumbai needs to be compulsorily probated,
irrespective of whether or not there is an actual need for it.

DOES
THE LAW OF LIMITATION APPLY?

Coming back to the issue at hand,
the question which arises is whether the filing of a probate petition is barred
by any law of limitation, i.e., is there an outer time limit for filing the
petition? In this respect, one may consider the provisions of the Limitation
Act, 1963 which provides for periods of limitations for various suits.
Article 137 of the schedule to this Act states that in respect of any other
application for which no specific period of limitation is provided elsewhere in
that Act, the period of limitation is three years from when the right to apply
accrues. Further, Rule 382 of the Bombay High Court (Original Side) Rules
provides that in any case where an application for probate is made for the
first time after the lapse of three years from the death of the deceased, the
reason for the delay shall be explained in the petition. If the explanation is
unsatisfactory, the Prothonotary and Senior Master may require such further
proof of the alleged cause of delay as he may deem fit.

In Vasudev Daulatram
Sadarangani vs. Sajni Prem Lalwani, AIR 1983 Bom 268, the Court dealt
with the issue of whether Article 137 was applicable to applications for
probate, letters of administration or succession certificate. The Court held
that there was no warrant for the assumption that this right to apply accrued
on the date of death of the deceased. It held that the right to apply
may therefore accrue not necessarily within three years from the date of the
deceased’s death but when it becomes necessary to apply, which may be any time
after the death of the deceased, be it after several years. However,
reasons for delay must be satisfactorily explained to the Court. Further, such
an application was for the Court’s permission to perform a legal duty created
by a Will or for recognition as a testamentary trustee and was a continuous
right which could be exercised any time after the death of the deceased, as
long as the right to do so survived.

This view of the High Court was
approved by the Supreme Court in Kunvarjeet Singh Khandpur vs. Kirandeep
Kaur & Ors (2008) 8 SCC 463. However, the Supreme Court also held
that the application for grant of a probate or letters of administration was
covered by Article 137 of the Limitation Act. In Krishna Kumar Sharma vs.
Rajesh Kumar Sharma (2009) 11 SCC 537 the Supreme Court once again reiterated
this view and also held that the right to apply for a probate was a continuous
right.

WHAT
IS THE MAXIMUM TIME LIMIT?

In Suresh Manilal Mehta
(Supra) a daughter opposed her father’s probate petition. Here, the
probate petition was filed 33 years after the testator died. She argued that
such a long delay in seeking the probate was itself a sufficiently suspicious
circumstance to warrant the dismissal of the suit, especially if there was no
explanation for the delay. The explanation for this delay was that under the
husband’s Will, a majority of his estate devolved upon his wife and some
portion on his son. Further, his daughter was to take in the residuary estate
only if both her parents and her brother were no more and if her brother died
before turning 21 years of age. Since that was not the case the daughter did
not get the residuary estate. When the mother got the father’s estate under his
Will, no dispute was raised. However, when she died and her Will was sought to
be probated, her daughter argued that first the father’s Will must be probated
since the mother derived her entire estate from the father. Thus, the act of
probating the father’s Will was a good 33 years after his death.

The High Court held that the view
that Article 137 would have no application at all in any case to any
application for probate was incorrect. However, neither of the aforesaid two
Supreme Court decisions had held that the date of death of the deceased would
invariably provide the starting point of limitation. On the contrary, both the
decisions confirmed that the right to apply for a probate was a continuing
right so long as the right to do so survived.

Giving the analogy of two Wills,
one made in Mumbai and the other outside Mumbai, the High Court explained that
it could not be that the three-year limitation from the testator’s death would
apply to one of those two Wills, the one made in Mumbai, and not to the other
Will, i.e., the one made outside Mumbai. The date of death of the deceased
could not, therefore, be the starting point for the limitation in two otherwise
identical situations separated only by geographies, or else there would be
different starting points of limitation!

Accordingly, the Court held that
the only consistent view was that the right to apply for a probate was a
continuing right and the application must be made within three years of
the time when the right to apply accrued. An executor named in the Will could
apply for probate at any time so long as the right to do so survived.

CONCLUSION