Right To Apply For Probate Is Continuous; Limitation Doesn't Apply As Long As Object Of Will Survives: Supreme Court
The Supreme Court was considering a matter relating to the limited issue of whether the application for probate was barred by limitation.
While restoring a probate matter raising questions over a will, the Supreme Court has held that the right to seek probate is a continuous right that can be exercised at any time so long as the object of the Will survives.
The Apex Court was considering a matter relating to the limited issue of whether the application for probate was barred by the law of limitation.
The Division Bench of Justice Sanjay Karol and Justice Vipul M. Pancholi held, “It is, therefore, a continuous right that can be exercised at any time so long as the object of the Will survives. The right to apply would therefore accrue from the date that it becomes necessary to apply. This obviously need not be within three years from the death of the testator. In this case, then, the need to apply would commence from the date when the respondents took actions hostile to the position established by the Will, that is, the execution of a General Power of Attorney…”
Senior Advocate Sudhanshu S. Choudhari represented the Appellant while Senior Advocate Shoiab Aalam represented the Respondent.
Factual Background
The application dated August 31, 2005 was initiated by one Bhudeo Prasad Singh, for probate of a Will executed by one Shrilal Singhania, which was rejected by the District Judge, Deoghar under Section 222 and 276 of the Indian Succession Act, 1925 by an order as a consequence of an application having been made under Order VII Rule 11 of Code of Civil Procedure, 1908 by the objectors-respondents. The High Court agreed with the findings of the Civil Court. It was in such circumstances that the appeal came to be filed before the Apex Court.
Reasoning
Considering that the Indian Succession Act does not provide for any particular time period within which an application for probate or revocation can be filed before the concerned Court, the Bench held that the relevant provision would be the residuary provision of the Limitation Act, 1963, i.e., Article 137.
The Bench went on to explain that the probate of a Will has three -fold purposes. It is a judicial stamp of approval on the genuineness of the Will, which acknowledges the appointment of an executor of the Will and grants the executor the authority to act for the purposes of the Will. “Keeping this in view, the specific view that the period of limitation for probate commences from the death of the testator has been rejected”, it added.
As per the Bench, the need to apply would commence from the date when the respondents took actions hostile to the position established by the Will, which was the execution of a General Power of Attorney by Laxmi Devi, wife of the testator, on August 8, 2005. The Bench thus noted that the application for probate of the Will made by the executor Bhudeo Prasad Singh, in favour of the appellant Sanjay Sharma @Sanjay Bhardwaj, was held to be within limitation since the same was filed on August 31, 2005.
Dealing with the question whether under Order VII Rule 11 CPC on an application filed by the objector, it was open for the High Court to return findings that are on the merits of the Will itself, the Bench stated, “We think not. Whether or not a particular Will is suspicious comments directly upon the sanctity of the Will itself which was not open for the Court to adjudicate in the proceedings, summary in nature without, obviously having appreciated evidence in that regard. The scope of adjudication of an application under Order VII Rule 11(d) is well established.”
Reference was made to the judgment in R. Mahadevan J. P. Kumarakurubaran v. P. Narayanan (2025), wherein it has been held that once limitation becomes a question of law and fact, it cannot be dismissed summarily under Order VII Rule 11 proceedings.
Thus, setting aside the impugned orders, the Bench allowed the appeal and restored the matter to the concerned Civil Court.
Cause Title: Sanjay Sharma @ Sanjay Bhardwaj v. Krishnadhan Khaware And Ors (Neutral Citation: 2026 INSC 708)
Appearance
Appellant: Senior Advocate Sudhanshu S. Choudhari, Advocates Kumar Shivam, Sameer Ranjan, AOR Vatsalya Vigya
Respondent: Senior Advocate Shoiab Aalam, Advocates Vikram Patralekh, Rishi K Awasthi, Amit V Awasthi, Bimlendu Thakur, AOR Punit Vinay