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Dated : June 11, 2020

Application for Probate- Limitation Act- Article 137 - whether to be made within three years of date of death


Will dated 16th April, 1989 - Probate application made on 8th September, 2014 - Time Limit for making application for Probate - Limitation Act - Calcutta High Court

The Calcutta high court in the case of Suresh Agarwal Vs Satyanarain Agarwal in GA No 990 of 2016 on 11th June,2020 was considering a petition for rejection of the probate application  on account of same having been barred by limitation as per Article 137 of the Limitation Act,1963. It was contended that the application for probate should have been made within 3 years of the death of Hanuman Prasad Agarwal who died in the year 1993. On the other hand the petitioner contended that the right to apply accrues only when a challenge is made to the Will or the same is disputed, which constitutes a triable issue relying on the decision in the case of Arvind Garach vs. Pragna Garach reported in (2015) SCC OnLine Cal 6485. The court finally held  that although Article 137 applies in cases of grant of probate, the right to apply accrues not from the date of death of the testator but from which the dispute arises or when it becomes necessary to apply for grant of probate. In other words, a party may apply when a challenge is made to a Will or a dispute arises in relation thereto.It is also clear that there is no outer limit for filing an application for probate and the time starts running from the date when the right to apply accrues. The language of Article 137 of the Limitation Act is not 3 years from the date of death of the testator but when “the right to apply accrues” which means that the time envisaged will be activated once the right is denied, giving rise to a consequent need to assert the right. The court also referred to the recent apex court decision in the case of Shakti Bhog Industries in relation to Article 113 of the Limitation Act. Finally the court concluded by saying that a combined reading of sections 211 and 213 of the Indian Succession Act makes it clear that an executor is the legal representative of a deceased person for all purposes and the property of a deceased person vests in the executor. Further, no right as executor or legatee can be established unless the Will is probated by a competent court. Hence, even if the executor does not apply for grant of probate, a beneficiary to a Will does not lose any valuable right bequeathed to him by the testator since the probate relates back to the date of death of the testator . On these facts the court held that the application was not barred by limitation.

Suresh Agarwal Vs Satyanarayan Agarwal Download PDF

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