Cause of action in probate of will is continuing in nature – limitation starts from the date hindrance is posed to legatee of bequeathed property

Patna High Court: A Single Judge Bench comprising of Prabhat Kumar Jha, J. while hearing a civil writ petition held that in an application for probate of will, cause of action accrues from the date when hindrance is put to legatee in the management of property bequeathed by will and not immediately after the death of propounder of will.

Petitioner’s case is that the respondent was given in adoption by his father to his father’s eldest brother. After the demise of petitioner’s father, respondent filed a probate case and thereafter petitioner filed a petition under Order VII Rule 11 (d) of CPC and Article 137 of the Limitation Act, 1963 which was dismissed by the lower court holding that respondent’s probate case was not barred as limitation would not start from the date of death of testator. Being aggrieved, the instant petition was filed.

The sole question for determination was as to whether filing of probate case three years after the death of testator was barred under Article 137 of the Limitation Act.

The Court observed that under Article 137 of Limitation Act, the period of limitation is three years from the date and the said period begins to run when the right to apply accrues. Relying on the dictum of  Supreme Court in Kunvarjeet Singh Khandpur v. Kirandeep Kaur, (2008) 8 SCC 463 it was held that an application for probate of will is for the court’s permission to perform a legal duty created by a will and is a continuous right which can be exercised any time after the death of deceased, as long as the right to do so survives. As such, the probate case of respondent was maintainable.

In view of the above, the petition was dismissed.[Arun Kumar Agrawal v. Anil Agrawal, 2018 SCC OnLine Pat 2070, decided on 28-09-2018]

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