Term “will” as defined under section 2(h) of the Indian Succession Act means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.

Whereas the probate is defined under section 2(f) of the act which means the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator. Probate serves as the formal procedure for validating the contents and authenticity of a will, and it can only be conferred by a court of competent jurisdiction upon an executor designated by or under the terms of the will. This legal process entails the granting of rights related to the administration of the estate to the applicant, who acts as the executor under the will. Within this process, key determinations are made, including identifying the executor of the will, establishing the beneficiaries, and evaluating the value of the estate.

Requirement of Probate:

In the case of Ravinder Nath Agarwal v. Yogender Nath Agarwal (LL 2021 SC 85)  it was observed that by virtue of Section 213(2)(i) read with clauses (a) and (b) of Section 57, of the act, the mandatory requirement to seek probate or letters of administration for establishing a right as executor or legatee under a will, is applicable only to wills made by a Hindu, Buddhist, Sikh or Jaina within the local limits of the ordinary original civil jurisdiction of certain High Courts and to wills made outside those territories, to the extent they cover immovable property situate within those territories. To put this simply, probate is necessary only when the wills are made within the territory of Calcutta, Madras and Bombay or when the wills are made regarding the property situated in the territory of the aforesaid states as per the Indian Succession Act, 1925.

Therefore, there is no prohibition for a person whose case falls outside the purview of these provisions, from producing, relying upon and claiming a right under a will, in any proceeding instituted by others including the other legal heirs for partition or other reliefs.

The legal provision outlined in Section 276 pertains to the process of applying for probate or letters of administration with the will annexed. The application, submitted in the form of a petition, must be written in English or the language commonly used in the relevant court proceedings. The petition should include the will or a copy, draft, or statement of its contents (in cases specified in sections 237, 238, and 239), and it must specify the time of the testator's death, confirm that the attached document is the last will and testament, assert its proper execution, state the anticipated assets coming to the petitioner, and, in probate applications, declare that the petitioner is the executor named in the will. Additionally, if the application is made to a District Judge, it should indicate that the deceased had a fixed place of abode or property within the judge's jurisdiction. If made to a District Delegate, it should affirm that the deceased had a fixed place of abode within the Delegate's jurisdiction. In cases where assets are situated in another state, the petition must disclose the amount of such assets in each state and identify the relevant District Judges within whose jurisdiction these assets are located.^[1]

As per section 227 of the act, probate of a will when granted establishes the will from the death of the testator, and renders valid all intermediate acts of the executor as such.

Applicability of Law of Limitation in the Probate Application:

The object of the law of limitation is to prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence, or laches. In Kerala State Electricity Board v. T.P. Kunhaliumma ^[2], the supreme court examined the question of applicability of article 137 of the limitation act and held that provisions of article 137 are not limited to the Code of Civil Procedure and can encompass petitions or applications under any Act filed in a civil court. The court observed that the alteration in the division and subsequent rearrangement of words in article 137 of the Limitation Act, 1963, when compared with Article 181 of the 1908 Limitation Act, indicates that applications under Article 137 are not limited to those governed by the Code of Civil Procedure. Unlike the 1908 Limitation Act, the 1963 Act introduced a distinction between applications in specified cases and other applications. The phrase "any other application" in article 137 does not, according to the principle of ejusdem generis, refer solely to applications under the Civil Procedure Code, excluding those mentioned in Part I of the third division. Instead, it encompasses petitions or applications under any Act, provided that they are made to a court. This interpretation is supported by Sections 4 and 5 of the 1963 Limitation Act, which address the expiration of the prescribed period when the court is closed and the extension of the prescribed period if the applicant or appellant demonstrates sufficient cause for the delay in filing the appeal or application.

The petition in Kerala State Electricity Board case was made to the District Judge as a court and was one contemplated by the Telegraph Act for judicial decision and thus was treated as an application falling within the scope of Article 137 of the 1963 Limitation Act

Relying on the above observation, the apex court in Kunvarjeet Singh Khandpur v. Kirandeep^[3] held that any application made in terms of section 264 of the Succession Act to the District Judge as defined under section 2(bb) attracts the provision of article 137 of the Limitation Act.

Thereafter comes the issue of deciding that when the right to apply accrues in terms of the provision contained under article 137 of the Limitation Act, i.e whether it begins from the date of death of the testator or any other event which constrains a party to approach a court of law for taking the first step for implementing the will of a testator.

In this regard, the hon'ble Supreme Court in Kunvarjeet Singh Khandpur v. Kirandeep Kaur (supra) held that in the context of applying for probate or letters of administration, the applicant does not assert any rights but seeks the court's acknowledgment to fulfils a moral duty, as there is no legal obligation to initiate such proceedings. The issuance of probate or letters of administration by a competent court is universally recognized as conclusive proof of the legal character. Despite the duty assigned by the testament's author for estate administration, the applicant merely seeks permission from the court to perform this moral duty. Consequently, the proceedings for the grant of probate or letters of administration are not considered a legal action.

The court further observed that:

“15. Similarly, reference was made to a decision of the Bombay High Court in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani [AIR 1983 Bom 268]. Para 16 reads as follows: (AIR p. 270)

“16. Rejecting Mr Dalpatrai'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 from the date of the 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.”

Conclusion (b) is not correct while Conclusion (c) is the correct position of law.”

The Bombay High Court had previously observed that it was unwarranted to assume that the right to apply under article 137 necessarily accrues on the date of the death of the deceased, however the Hon'ble Supreme Court herein held it to be incorrect position of law in the terms of above judgement which ultimately led to a lots of confusion and different interpretations.

However, from conjoint reading of the observations laid down and the facts of the case it becomes amply clear that an application for probate serves as a formal acknowledgment of the obligation to fulfil a duty, constituting a continuous right. It was further held that once the executor's right is encroached upon by any party, the entitlement to apply for probate arises. In the instant case the withdrawal of the probate proceeding and the subsequent filing of an application for letters of administration led to the accrual of the right to apply.

Consequently, ratio of the case implies that the right to apply is not construed to be tied to the date of the testator's death, but rather to the moment when the right to seek acknowledgment from the court for the performance of the duty arises.

The same position was held by hon'ble Calcutta High Court in the case of Arvind Garach v. Pragna Garach ^[4] which while addressing the issue of the accrual of the right to apply has observed that it has to be interpreted in the perspective of the dispute having arisen for which it becomes necessary to have the probate granted to a will of a testator/testatrix. The court further relied on the observation of apex Court in case of Major (Retd.) Inder Singh Rekhi v. Delhi Development Authority^[5] wherein it was held that there can only be a dispute when a claim is asserted by one party and denied by the other on whatever grounds. Mere failure or inaction to pay does not lead to the inference of the existence of dispute. Dispute entails a positive element and assertion in denying, not merely inaction to accede to a claim or a request. When in a particular case a dispute has arisen or not has to be fund out from, the facts and circumstances of the case.

The issue was further clarified in the case of Hanuman Prasad Agarwal v. Satyanarain Agarwal ^[6], wherein the Calcutta High Court while deliberating over the it observed that 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.

Further, the court noted that, except section 217 which regulates applications for probates/letters of Administration under Part IX of the 1925 Act, there is no provision in the Succession Act which compels the executor to file for grant of probate. Hence, if the right to apply for probate is seen as a continuing right, construing Article 137 as bringing down the curtain to such a right after 3 years cannot stand to reason and would frustrate the very object of the law preserving the wishes of a testator. Importing the provisions of the Limitation Act in a manner which would frustrate the last wish of the deceased cannot also be the intention of the Legislature since the decision of a Probate Court is a judgment in rem not only binding upon the parties to the probate proceeding but binding on the whole world.

Present Legal Position Based on Above Observations:

The legal position presented in Kunvarjeet Singh Khandpur v. Kirandeep Kaur (supra) indicates that the right to apply for probate is considered a continuous right, not contingent on the date of the testator's death but on the moment when the obligation to seek acknowledgment from the court arises. The determination of obligation is based on the encroachment of the executor's right by another party, leading to the accrual of the right to apply. The withdrawal of probate proceedings and the subsequent filing for letters of administration are identified as events triggering this accrual. The withdrawal of probate proceedings and the subsequent filing of an application for letters of administration leads to the accrual of the right to apply. In case of Arvind Garach v. Pragna Garach (supra), the interpretation of the right to apply is framed in the context of a dispute arising, requiring the assertion and denial of a claim. The case of Hanuman Prasad Agarwal v. Satyanarain Agarwal (supra) further reiterates the legal position holding that article 137 of the Limitation Act comes into force when "the right to apply accrues," signifying that the it commences with the denial of the right, prompting the need to assert it. It is further held that if the right to apply for probate is viewed as a continuing right, interpreting article 137 as limiting exercise of this right after the expiry of the period of 3 years would be unreasonable. Such an interpretation could undermine the purpose of the law, which aims to preserve the testator's wishes as construing the provisions of limitation act in a way that frustrates the deceased's last wish is unlikely to be the legislative intent.

Views are personal.

[1] S. Krishnaswami, In re, 1990 SCC OnLine Mad 200