Probate of Will – Delay in filing Application – May arouse suspicion – But not absolute bar of limitation : Succession Act 1925 section 222:

The testator died on 5th September 1999. The two Respondents were the sons who are the original Plaintiffs. The testator was survived besides his two sons, by six daughters, three of whom, the Appellants, had lodged caveats in response to the Testamentary Petition seeking probate of the will alleged to have been executed by the testator on 20th March, 1989. Under his will, the testator directed his executors and trustees to pay a sum of Rs. 30,000/- to each of his daughters and an amount of Rs. 1.00 lakh to his wife. The residue was bequeathed to his two sons who are appointed as executors. Pauline, the wife of the testator, died on 20th July 1994. There were two attesting witnesses to the will of the testator. Both of them were solicitors and advocates. One of them, Jaswant Chimanlal Shah had filed an affidavit dated 18th December, 2006 in the testamentary petition. He died on 9th May 2008 before he could be examined in evidence. The second attesting witness Kantibhai R. Thakkar was also a solicitor but he too died in 1993. The learned Single Judge held that the will had been duly proved and directed that probate shall issue.

The Hon’ble Court observed that section 63 of the Succession Act, 1925 specifies the manner in which a will has to be executed. Clause (c) of section 63 requires attestation of a will by two or more witnesses each of whom has to have seen the testator sign or to have received from the testator a personal acknowledgement of the signature. Each of the two witnesses must sign the will in the presence of the testator but it is not necessary that more than one witness should be present at the same time. Section 68 of the Evidence Act specifies the requirements for adducing proof of the execution of a document which is required by law to be attested. U/s. 68, if a document is required to be attested by law, it cannot be used as evidence unless one attesting witness has been called for proving the execution of the document, if an attesting witness is alive. Section 69 deals with a contingency where no attesting witness can be found. In such a situation, section 69 requires proof that the attestation of one attesting witness at least is in his handwriting and that the signature of the person executing the document is in the handwriting of that person.

The Hon’ble Court observed that there is no warrant for the assumption that the right to apply for the grant of probate as envisaged in Article 137 of the Schedule to the Limitation Act necessarily accrues on the date of the death of the deceased. The Court held that such an application is to seek the permission of the Court to perform a duty created by the will or for a recognition as a testamentary trustee and the right to apply is a continuous right which is capable of being exercised so long as the object of the trust exists or any part of the trust, if created, remains to be executed.

Finally it was held construing the provisions of Rule 382 that while any delay beyond three years after the death of the deceased would arouse suspicion, but such delay, while it has to be explained, cannot be equated with an absolute bar of limitation.

Moreover, once the execution and attestation of will are proved a suspicion based on delay would no longer operate. In the circumstances, the contention that the delay should result in the dismissal of the suit was declined.