The Supreme Court has held that the limitation period for filing a probate application does not automatically commence from the date of the testator’s death. Instead, the right to seek probate arises when it becomes necessary to apply, such as when the validity or implementation of the Will is challenged. 

The Bench of Justice Sanjay Karol and Justice Vipul M. Pancholi delivered the judgment while allowing an appeal filed by Sanjay Sharma @ Sanjay Bhardwaj. The Court set aside the orders of the District Judge, Deoghar, and the Jharkhand High Court, both of which had dismissed a probate application as being barred by limitation. The matter has now been remanded to the civil court for adjudication on merits. 

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The dispute arose from a Will executed on 15 April 1995 by Shrilal Singhania. Following the testator’s death on 7 June 1995, the executor, Bhudeo Prasad Singh, filed an application for probate on 31 August 2005 under Sections 222 and 276 of the Indian Succession Act, 1925.

The objectors sought rejection of the probate petition under Order VII Rule 11 of the Code of Civil Procedure, arguing that the application had been filed nearly ten years after the testator’s death and was therefore barred by limitation. Accepting this contention, the District Judge rejected the probate petition in 2012, and the Jharkhand High Court affirmed that decision in 2022. 

The principal issue before the Supreme Court was whether the limitation period for filing a probate application necessarily begins on the date of the testator’s death or whether it begins only when circumstances make it necessary to seek probate. 

The Court observed that the Indian Succession Act does not prescribe any specific limitation period for filing probate or revocation applications. Consequently, Article 137 of the Limitation Act, 1963, which provides a three-year limitation for applications where no specific period is prescribed, would apply. However, the crucial question is when the “right to apply” accrues. 

Rejecting the reasoning adopted by the courts below, the Bench held that probate proceedings cannot be treated like ordinary civil claims where limitation invariably begins upon the occurrence of a fixed event such as death.

The Court explained that probate serves three important functions:

• It judicially confirms the genuineness of the Will.
• It recognizes the appointment of the executor.
• It authorizes the executor to administer the estate in accordance with the Will. 

Referring to earlier decisions including Kunvarjeet Singh Khandpur v. Kirandeep Kaur and Sameer Kapoor v. State, the Bench reiterated that the executor’s right to seek probate is a continuing right that survives so long as the object of the Will continues to exist. Mere lapse of time after the testator’s death does not extinguish this right. 

Applying this principle to the facts, the Court found that the necessity to seek probate arose only when the respondents acted inconsistently with the Will by executing a General Power of Attorney on 8 August 2005.

Since the probate petition was filed on 31 August 2005—within weeks of that event—the Court held that it was well within limitation under Article 137 of the Limitation Act. 

The Supreme Court also held that both the trial court and the High Court exceeded the limited scope of proceedings under Order VII Rule 11 CPC.

The Bench emphasized that while deciding an application for rejection of a plaint or petition at the threshold, courts cannot undertake an examination of the merits of the Will or determine whether it is surrounded by suspicious circumstances. Such questions require appreciation of evidence during a full-fledged trial.

The Court relied upon its earlier decisions in Salim D. Agboatwala v. Shamalji Oddhavji Thakkar and P. Kumarakurubaran v. P. Narayanan, reiterating that where limitation depends upon disputed facts—particularly the date on which the right to sue or apply accrued—it becomes a mixed question of law and fact which cannot be decided summarily under Order VII Rule 11 CPC. 

Allowing the appeal, the Supreme Court set aside both the District Judge’s order dated 31 July 2012 and the Jharkhand High Court’s judgment dated 28 April 2022.

The Court restored the probate proceedings before the competent civil court for adjudication in accordance with law, observing that the courts below had committed a clear error in treating the application as barred by limitation and in entering into issues relating to the merits of the Will at the preliminary stage. Pending applications were disposed of without any order as to costs.  

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