Probate proceedings

s b krishna (Querist) 19 April 2012 This query is : Resolved
Whether Article 137 of the limitation act applies to a probate proceedings ?

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A V Vishal (Expert) 19 April 2012
Citation: 2008(2)SCCD744(S.C.)

Judgement CASE NO.: Appeal (civil) 2464 of 2008

PETITIONER: Kunvarjeet Singh Khandpur

RESPONDENT: Kirandeep Kaur & Ors

DATE OF JUDGMENT: 03/04/2008

BENCH: Dr. ARIJIT PASAYAT & P.SATHASIVAM

CIVIL APPEAL NO 2464 of 2008
(Arising out of SLP(C) No. 12488/2006)

ajay sethi (Expert) 19 April 2012
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 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 [112 (2004)DLT 877]

ajay sethi (Expert) 19 April 2012
decision of the Bombay High Court's case in Vasudev Daulatram Sadarangani v Sajni Prem Lalwani (AIR 1983 Bom.268). 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".

Devajyoti Barman (Expert) 19 April 2012
There is no limitation period for Probate proceeding.
In other words application for probate could e filed at any point of time.