Probate Application Is a Continuous Right; Limitation Runs From When Need Arises, Not Death
A Supreme Court bench of Justices Sanjay Karol and Vipul M. Pancholi holds that limitation for probate accrues when necessity arises, restoring a long-delayed petition to the Civil Court.
The Supreme Court has ruled that an application for probate of a Will is not automatically time-barred merely because it was filed a decade after the testator's death. In Sanjay Sharma @ Sanjay Bhardwaj v. Krishnadhan Khaware and Ors., a Division Bench of Justices Sanjay Karol and Vipul M. Pancholi set aside concurrent orders of the District Judge, Deoghar and the Jharkhand High Court that had rejected a probate application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 on the ground of limitation. The Court held that the right to seek probate is a continuous one, and limitation under Article 137 of the Limitation Act, 1963 begins when it becomes necessary to apply — not from the date of the testator's death. The matter has been restored to the concerned Civil Court for adjudication on merits.
How the Dispute Reached the Supreme Court
One Bhudeo Prasad Singh filed an application on 31 August 2005 seeking probate of a Will dated 15 April 1995, executed by one Shrilal Singhania. The application was filed before the District Judge, Deoghar under Sections 222 and 276 of the Indian Succession Act, 1925.
The respondents filed an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908, seeking rejection of the probate application at the threshold. The District Judge accepted this and by order dated 31 July 2012 rejected the application, principally on the ground that it had been made in 2005 when the testator had passed away on 7 June 1995 — a gap of nearly a decade that the courts below found unexplained and unjustified.
The Jharkhand High Court, in Miscellaneous Appeal No.153 of 2012, agreed with the Civil Court and dismissed the challenge by judgment dated 28 April 2022. The executor's representative, Sanjay Sharma @ Sanjay Bhardwaj, then approached the Supreme Court by way of Special Leave Petition (C) No.13473 of 2022.
The Limitation Question: Does the Clock Start at Death?
The Court identified two issues. The first was whether the probate application was barred by limitation. The Indian Succession Act, 1925 prescribes no specific period for filing a probate application. The Court applied Article 137 of the Limitation Act, 1963 — the residuary provision covering applications for which no other period is provided — which sets a three-year period running from “when the right to apply accrues.”
The courts below had treated the testator's death on 7 June 1995 as the moment the right to apply accrued. The Supreme Court disagreed plainly: “we are unable to agree with such a view.”
The Court identified three purposes that a grant of probate serves: it is a judicial stamp of approval on the genuineness of a Will; it acknowledges the appointment of an executor; and it grants the executor authority to act for the purposes of the Will. Given these functions, the Court held that the right to apply for probate cannot be fixed rigidly to the moment of the testator's death.
The Settled Position: A Continuous Right
The Court drew on a line of authority starting with the Bombay High Court judgment in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani (AIR 1983 Bom 268), which the Supreme Court had itself approved in Kunvarjeet Singh Khandpur v. Kirandeep Kaur (2008) 8 SCC 463 and Sameer Kapoor v. State (2020) 12 SCC 480.
From that line of authority, the Court extracted the governing principles. The Limitation Act advisedly prescribes no fixed period for a probate application. The application is for the court's permission to perform a legal duty created by a Will, or for recognition as a testamentary trustee. This makes it a continuous right, exercisable at any time after the death of the deceased, so long as the right survives and the object of the trust exists or any part of the trust remains to be executed.
The Court clarified which conclusions from Vasudev Daulatram Sadarangani survive: conclusion (b) of that judgment — which assumed that the right to apply necessarily accrues on the date of death — was expressly held incorrect. Conclusion (c) — that the application is a continuous right exercisable any time — was confirmed as the correct position of law.
Delay beyond three years from the testator's death is not, however, without consequence. The Court recorded that such delay arouses suspicion, and the greater the delay, the greater the suspicion. But this suspicion must be explained; it does not translate into an absolute bar of limitation. And once execution and attestation of the Will are proved, the suspicion arising from delay ceases to operate.
Applying these principles to the facts, the Court found that the occasion to apply for probate arose when the respondents took actions hostile to the Will. Specifically, on 8 August 2005, Laxmi Devi — the wife of the testator — executed a General Power of Attorney. The probate application was filed on 31 August 2005, shortly after that event. The Court held the application to be within limitation on that basis.
Order 7 Rule 11 Cannot Determine Merits of the Will
The second issue the Court addressed was whether it was permissible, in an Order 7 Rule 11 application filed by an objector, for the courts below to record findings on the merits of the Will itself — including whether the Will appeared suspicious.
The Court held that it was not. Whether a Will is suspicious goes directly to its sanctity. That is a question that can only be decided after evidence is led, not in summary proceedings at the threshold.
The Court relied on Salim D. Agboatwala v. Shamalji Oddhavji Thakkar (2021) 17 SCC 100, where it was held that rejection of a plaint under Order 7 Rule 11 on limitation grounds is a drastic power, and the conditions for its exercise are stringent. Where a plaintiff claims that knowledge of essential facts arose only at a particular point in time, that claim must be accepted at the Order 7 Rule 11 stage. Limitation then becomes a triable issue and the plaint cannot be thrown out at the threshold.
The Court also referred to P. Kumarakurubaran v. P. Narayanan (2025 SCC OnLine SC 975), decided by R. Mahadevan J., which held that once the date of knowledge is specifically pleaded and forms the basis of the cause of action, limitation becomes a mixed question of law and fact. It cannot be adjudicated summarily under Order 7 Rule 11 CPC, and rejection of the plaint on limitation without permitting evidence is legally unsustainable.
Both grounds — the incorrect application of limitation law and the impermissible merits-finding in Order 7 Rule 11 proceedings — independently justified interference. The Court found that the courts below had “plainly erred in law” on both counts.
Order
The Supreme Court allowed the civil appeal. The order dated 31 July 2012 of the District Judge, Deoghar, and the judgment dated 28 April 2022 of the High Court of Jharkhand were set aside. The matter was restored to the concerned Civil Court to proceed in accordance with law. Pending applications, if any, were disposed of. No costs were awarded.