Limitation for revocation of Probate is three years

Application of Limitation Act to Probate Proceedings

Court in Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma, AIR 1997 SC 282 has held that any application under any Act, including a Writ Petition under any Special Act will fall under within Article 137 of the Limitation Act and have a limitation period of three years.

“22. The changed definition of the words “applicant” and “application” contained in Section 2(a) and 2(b) of the 1963 Limitation Act indicates the object of the Limitation Act to include petitions, original or otherwise, under special laws. The interpretation which was given to Article 181 of the 1908 Limitation Act on the principle of ejusdem generis is not applicable with regard to Article 137 of the 1963 Limitation Act. Article 137 stands in isolation from all other Articles in Part I of the third division. This Court in Nityanada Joshi’s case (supra) has rightly thrown doubt on the two Judge Bench decision of this Court in Athani Municipal Council case (supra) where this Court construed Article 137 to be referable to applications under the Civil Procedure Code. Article 137 includes petitions within the word “applications.”

These petitions and applications can be under any special Act as in the present case.

The appellant relied upon the judgment B. Manjunath Prabhu v. C. G. Srinivas & Others, AIR 2005 Kant 136, to argue that Article 137 does not apply to application for grant of probate and sought to apply it to the present case of application for revocation of grant. The High Court of Karnataka while passing the aforementioned judgment relied upon the judgment of Madras High Court in the case of S. Krishnaswamy v. E. Devarajan, AIR 1991 Mad 214.

In these judgments, the High Courts have observed that in the application filed for grant of probate or Letters of Administration, no right is asserted or claimed by the appellant. The applicant only seeks recognition of the Court to perform a duty. By the proceedings filed for grant of probate or Letters of Administration, no rights of the applicant are settled or secured in the legal sense. The author of the testament has cast a duty with regard to the administration of his estate, and the applicant for probate only seeks the permission of the Court to perform that duty. The duty is only moral and not legal. There is no law which compels the applicant to file the proceedings for probate or letters of administration. Based on these observations, the Courts have ruled that it would be very difficult to hold that the proceedings for grant of probate come within the meaning of an application under Article 137 of the Limitation Act, 1963. The Judgment of the Madras High Court, mentioned supra, is considered by this Court in Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma, AIR 1997 SC 282, cited supra. In our considered opinion, in view of the judgments of this Court in the case of both Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma, AIR 1997 SC 282 and Kunvarjeet Singh Khandpur v. Kirandeep Kaur, (2008) 8 SCC 463, the judgments of the High Court’s cannot be pressed by the appellant.

Bar of Limitation

The grant of probate by a Competent Court operates as a judgment in rem and once the probate to the Will is granted, then such probate is good not only in respect of the parties to the proceedings, but against the world. If the probate is granted, the same operates from the date of the grant of the probate for the purpose of limitation under Article 137 of the Limitation Act in proceedings for revocation of probate. In this matter, as mentioned supra, the appellant was a minor at the time of grant of probate. She attained majority on 09.09.1965. She got married on 27.10.1965. In our considered opinion, three years limitation as prescribed under Article 137 runs from the date of the appellant attaining the age of majority i.e. three years from 09.09.1965. The appellant did not choose to initiate any proceedings till the year 25.01.1996 i.e., a good 31 years after she attained majority. No explanation worthy of acceptance has been offered by the appellant to show as to why she did not approach the Court of law within the period of limitation. At the cost of repetition, we observe that the appellant failed to produce any evidence to prove that the Will was a result of fraud or undue influence. The same Will has remained un-challenged until the date of filing of application for revocation. No acceptable explanation is offered for such a huge delay of 31 years in approaching the Court for cancellation or revocation of grant of probate.

[Source: Lynette Fernandes vs Gertie Mithias, decided by SC on 8 November, 2017]
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