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Clarification related to the provisions of the will and probate
19-Mar-2023 (In Wills / Trusts Law)
1. Is there any time limit within which an application for probate of a Will has to be filed after death of the testator? 2. Is only the executor, who is also one of the two beneficiaries, of a Will has the right to apply for probate or the other one can also do it? 3. Is part probate of the immovable properties only in exclusion of the investments allowed under law though the Will is for both house properties and investments. 4. The Will mentions about equal sharing of the investments but is silent about details thereof and the executor is not willing to reveal it. What remedy is available to the other beneficiary to know complete and full list of the investments? Only the executor beneficiary has full knowledge of all the properties as he controls everything. 5. Is there any option open to the other beneficiary to get due share of the properties, both immovable and movable, as per the Will if the executor beneficiary does not apply for probate at all?
Heard Sri P.N. Saxena, Senior Advocate assisted by Sri Amit Saxena for petitioner for Probate/ Letters of Administration of Will dated 1.10.1997 executed by Late Pt. Triyugi Narain alias Kamlapati (deceased) who is alleged to have died on 8.10.1997.
A perusal of the will shows that it does not require execution and has only bequeathed the property in favour of the applicant.
In respect of the same deceased, five wills are under adjudication in this Court and that this case was connected with Testamentary Suit No. 2 of 1998, 15 of 1999, 6 of 2000 and 7 of 2000 and a petitioner by the Administrator General namely Testamentary Suit No. 26 of 2005.
Time was given to the learned counsel for the petitioner to explain the delay in filing this application specially when five more petitions were pending in respect of the wills made by the same deceased, with conflicting interest.
The applicant Sri Ram Singh has not offered any good and sufficient explanation for the delay in filing the application for Letters of Administration. Since the will does not require execution the prayer could only be made for Letters of Administration and not for probate.
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It has been held by me, after considering the entire case law in the matter, in T.C. No. 28 of 1997 in re: Begum Shanti Tufail Ahmad Khan that Article 137 in the schedule appended to The Limitation Act, 1963 is applicable to the proceedings for grant of Letters of Administration. The relevant portion in the judgment is quoted as below:
"16. The question of limitation, was also argued at length. The alleged Will was executed by late Begum Shanti Tufail Khan on 23.5.1974. She died on 9.10.1976. The applicant filed the testamentary case on 18.9.1997 alleging in para 11 that the Will was handed over to Yusuf Ali Khan son of Kamaluddin Khan, who is also an attesting witness to the Will and that Sri Yusuf Ali Khan in pursuance to the instructions of the testatrix handed over the Will to the petitioner on 15.7.1997. In his affidavit (Paper No. A-3/30) filed along with testamentary case Sri Yusuf Ali Khan as an attesting witness has stated in para 5 "that the said will was not traced out within time by the deponent.When the same was traced out the deponent handed over the same to the petitioner."
17. The explanation of delay offered in para 11 of the petition and para 5 of the affidavit of Sri Yusuf Ali Khan is far from satisfactory. There is no other assertion or statement on record explaining the delay of about 20 years in filing the petition during which time the assets of Begum Shanti Tufail Khan were under a spate of litigation and her alleged properties were changing hands on execution of lease deeds and transfer deeds.
18. The Indian Succession Act 1925 does not provide for any limitation to file a petition for probate. Sri J. Nagar, Administrator General states that in the circumstances Article 137 of
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the Limitation Act 1963 would be applicable, which is residuary clause and provides that for any other application for which no period of limitation is provided elsewhere, the period of limitation will be three years, when the right to apply accrues. It is submitted by Sri S.K. Misra that in the case of will where no probate was granted, the cause of action to obtain probate accrues on every date until the will is probated. He submits that the residuary clause under Article 137 of the Limitation Act 1963 has no application to proceedings of probate.
19. An application may be given for probate of the Will by executer or any other beneficiaries where the Will provides for its execution. In cases of Will where no executer is named in the Will, nor the Will requires its execution by any other person an application is maintainable for Letters of Administration. In Kerela State Electricity Board Trivendrum vs. T.P. Kunhaliumma AIR 1977 SC 282 the Supreme Court held that where by statutes matters are covered for determination by a court, with no further provision, the necessary implication is that the court will determine the matter. The application of Article 137 is not confined to the Code of Civil Procedure. The words ''any other application' under Article 137 cannot be said on the principle of edjusdem generis to be obligations under the Code of Civil Procedure other than those mentioned in Part-I of the Third Division. Any other application under Article 137 would be petition or any application under any Act, but it has to be an application to a Court for a reason that Section 4 and 5 of the Limitation Act speak of expiry of prescribed period when the Court is closed. An explanation of prescribed period if an applicant or appellant satisfy the Court that he had sufficient cause for not preferring the appeal or making application during such period. In Smt. Shakuntala Devi vs. Ladley Mohan Mathur, 1986 AWC 120 this Court held that no
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limitation is provided for seeking the probate of a duly executed will. The Court took into account the delay as suspicious circumstances of not producing the Will. The plea of limitation and applicability of Article 137 of the Limitation Act was neither raised nor decided. In Smt. Leela Karwal vs. J Karwal and others AIR 1983 Allahabad 386, this Court observed in para 58 that there was no limitation prescribed for filing an application for grant of Letters of Administration. The delay in filing the petition is a matter to be considered while adjudicating upon the validity of the will in respect of which the grant of Letters of Administration has been sought. But the mere fact that a petition is filed after 13 years, cannot be a ground for holding it to be non-maintainable in law.
20. In Ramanand Thakur vs. Parmanand Thakur AIR 1982 Patna 87 it was observed that though Article 137 of the Limitation Act applies to any petition or application filed under any Act. So far as applications for grant of a probate or Letters of Administration are concerned, they are not governed by any Article of Limitation Act. The reasons given in the judgements are that in case an application for grant of probate or Letters of Administration it is difficult to find out as to when the right to apply accrues and unless that date can be fixed, there is no question of starting of the period of limitation. The right to apply for a probate accrues from day-to-day so long as the will remains unprobated. The Patna High Court relied upon the judgement of Calcutta High Court in Kalinath vs. Nagendra Nath AIR 1959 Calcutta 81 it was under the old limitation act in which the residuary Article 181 was couched in a different language in Article 181 of the Indian Limitation Act 1901. The applications for which no limitation is provided elsewhere in the schedule or by Section 48 of the Code of Civil Procedure the In the end learned counsel for the bank submits that the remeperiod of limitation was three years, when the
5
right to appeal accrues.
21. In the matter of Estate of Late Gurcharan Dass Puri AIR 1987 Punjab and Haryana 122 the Punjab High Court relied upon the period of limitation prescribed under Article 137 of the Limitation Act 1963 and distinguishing Ramanand's case (AIR 1982 Patna 87) held that Article 137 of the Limitation Act 1963, will govern the petition for obtaining Letters of Administration. In John Feransic Anthony Gonsalves vs. Agnesmary Conception Rebell, AIR 2001 Bombay 372, the Bombay High Court did not frame any issue with regard to the applicability of the Limitation Act. It, however, held that the delay of 20 years will dis-entitle the legatee from executing the same and that relying upon Section 141 of the Indian Succession Act 1923 which provides that if a Legatee is bequeathed to a person whose name is given as an executer of the will he shall not take the lessee unless he proves the will or signifies, manifests an intention to act an executor and held that the delay of 20 years established that the executor had manifested his intention not to act as an executor.
22. The law of limitation is a law of repose based on rules of estoppel. It serves an important purpose of bringing finality to state of affairs which have prevailed in the knowledge of parties for sufficiently long period of time. The life must go on and that past events should not intervene to bring uncertainty to the common course of events which engulf the citizen. The law of limitation affirms free and uninterrupted flow of events. Where a legal right has not been enforced, for long period of time, it should not be permitted to be put into motion to disturb the normal events. The residuary Article 137 as interrupted in the Kerela State Electricity Board Trivendrum (supra) applies to all transactions where the limitation is not
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specifically provided. It fixes a period of three years for taking action when the right to apply accrues. In cases of grant of probate or Letters of Administration of the deceased expressing his/her will, for arrangements of his/her affairs after his/her death the propounder must bring an action for grant of Letters of Administration or probate as early as possible. The applicability of residuary clause under the Limitation Act serves this purpose. The properties cannot be left un-administered for a longer period of time. These may change hands by transfer bringing its administration to uncertainty and disturb the rights which may accrue in favour of such transferee. The present case offers an example of such facts. In the twenty years in which the will was not brought into light the properties in certain states have changed hands many times. The pro-pounder therefore is under obligation to satisfy the court that he has no knowledge about the execution of the will."
The petitioner has not been able to satisfactorily explain the delay beyond three years. There is absolutely no pleadings as to when the applicant came to know about the execution of the will. The pleadings go to show that he had knowledge of the will from the date it was executed and had full knowledge of the date of death of Late Pt. Triyugi Narain.
For the aforesaid reasons I find that this application is barred by limitation. Sri P.N. Saxena Senior Advocate, then made a prayer that this application should be treated as caveat in other applications on the ground that there is a will in favour of the applicant, the validity of which has not been considered by the Court. The prayer is allowed. The Testamentary Case is disposed of with the directions that this petition shall be treated as caveat in other testamentary suits.
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Sri J. Nagar states that the objections in testamentary case no. 28 of 2005 may be treated as rejoinder affidavit to the caveat of Sri Ram Singh. Let a copy be served on all other applicants namely in testamentary suit no. 2 of 1998, 15 of 1999, 6 of 2000, 7 of 2000 and let the plaintiffs in these suits file replication to the caveat of Sri Ram Singh.
A perusal of the will shows that it does not require execution and has only bequeathed the property in favour of the applicant.
In respect of the same deceased, five wills are under adjudication in this Court and that this case was connected with Testamentary Suit No. 2 of 1998, 15 of 1999, 6 of 2000 and 7 of 2000 and a petitioner by the Administrator General namely Testamentary Suit No. 26 of 2005.
Time was given to the learned counsel for the petitioner to explain the delay in filing this application specially when five more petitions were pending in respect of the wills made by the same deceased, with conflicting interest.
The applicant Sri Ram Singh has not offered any good and sufficient explanation for the delay in filing the application for Letters of Administration. Since the will does not require execution the prayer could only be made for Letters of Administration and not for probate.
2
It has been held by me, after considering the entire case law in the matter, in T.C. No. 28 of 1997 in re: Begum Shanti Tufail Ahmad Khan that Article 137 in the schedule appended to The Limitation Act, 1963 is applicable to the proceedings for grant of Letters of Administration. The relevant portion in the judgment is quoted as below:
"16. The question of limitation, was also argued at length. The alleged Will was executed by late Begum Shanti Tufail Khan on 23.5.1974. She died on 9.10.1976. The applicant filed the testamentary case on 18.9.1997 alleging in para 11 that the Will was handed over to Yusuf Ali Khan son of Kamaluddin Khan, who is also an attesting witness to the Will and that Sri Yusuf Ali Khan in pursuance to the instructions of the testatrix handed over the Will to the petitioner on 15.7.1997. In his affidavit (Paper No. A-3/30) filed along with testamentary case Sri Yusuf Ali Khan as an attesting witness has stated in para 5 "that the said will was not traced out within time by the deponent.When the same was traced out the deponent handed over the same to the petitioner."
17. The explanation of delay offered in para 11 of the petition and para 5 of the affidavit of Sri Yusuf Ali Khan is far from satisfactory. There is no other assertion or statement on record explaining the delay of about 20 years in filing the petition during which time the assets of Begum Shanti Tufail Khan were under a spate of litigation and her alleged properties were changing hands on execution of lease deeds and transfer deeds.
18. The Indian Succession Act 1925 does not provide for any limitation to file a petition for probate. Sri J. Nagar, Administrator General states that in the circumstances Article 137 of
3
the Limitation Act 1963 would be applicable, which is residuary clause and provides that for any other application for which no period of limitation is provided elsewhere, the period of limitation will be three years, when the right to apply accrues. It is submitted by Sri S.K. Misra that in the case of will where no probate was granted, the cause of action to obtain probate accrues on every date until the will is probated. He submits that the residuary clause under Article 137 of the Limitation Act 1963 has no application to proceedings of probate.
19. An application may be given for probate of the Will by executer or any other beneficiaries where the Will provides for its execution. In cases of Will where no executer is named in the Will, nor the Will requires its execution by any other person an application is maintainable for Letters of Administration. In Kerela State Electricity Board Trivendrum vs. T.P. Kunhaliumma AIR 1977 SC 282 the Supreme Court held that where by statutes matters are covered for determination by a court, with no further provision, the necessary implication is that the court will determine the matter. The application of Article 137 is not confined to the Code of Civil Procedure. The words ''any other application' under Article 137 cannot be said on the principle of edjusdem generis to be obligations under the Code of Civil Procedure other than those mentioned in Part-I of the Third Division. Any other application under Article 137 would be petition or any application under any Act, but it has to be an application to a Court for a reason that Section 4 and 5 of the Limitation Act speak of expiry of prescribed period when the Court is closed. An explanation of prescribed period if an applicant or appellant satisfy the Court that he had sufficient cause for not preferring the appeal or making application during such period. In Smt. Shakuntala Devi vs. Ladley Mohan Mathur, 1986 AWC 120 this Court held that no
4
limitation is provided for seeking the probate of a duly executed will. The Court took into account the delay as suspicious circumstances of not producing the Will. The plea of limitation and applicability of Article 137 of the Limitation Act was neither raised nor decided. In Smt. Leela Karwal vs. J Karwal and others AIR 1983 Allahabad 386, this Court observed in para 58 that there was no limitation prescribed for filing an application for grant of Letters of Administration. The delay in filing the petition is a matter to be considered while adjudicating upon the validity of the will in respect of which the grant of Letters of Administration has been sought. But the mere fact that a petition is filed after 13 years, cannot be a ground for holding it to be non-maintainable in law.
20. In Ramanand Thakur vs. Parmanand Thakur AIR 1982 Patna 87 it was observed that though Article 137 of the Limitation Act applies to any petition or application filed under any Act. So far as applications for grant of a probate or Letters of Administration are concerned, they are not governed by any Article of Limitation Act. The reasons given in the judgements are that in case an application for grant of probate or Letters of Administration it is difficult to find out as to when the right to apply accrues and unless that date can be fixed, there is no question of starting of the period of limitation. The right to apply for a probate accrues from day-to-day so long as the will remains unprobated. The Patna High Court relied upon the judgement of Calcutta High Court in Kalinath vs. Nagendra Nath AIR 1959 Calcutta 81 it was under the old limitation act in which the residuary Article 181 was couched in a different language in Article 181 of the Indian Limitation Act 1901. The applications for which no limitation is provided elsewhere in the schedule or by Section 48 of the Code of Civil Procedure the In the end learned counsel for the bank submits that the remeperiod of limitation was three years, when the
5
right to appeal accrues.
21. In the matter of Estate of Late Gurcharan Dass Puri AIR 1987 Punjab and Haryana 122 the Punjab High Court relied upon the period of limitation prescribed under Article 137 of the Limitation Act 1963 and distinguishing Ramanand's case (AIR 1982 Patna 87) held that Article 137 of the Limitation Act 1963, will govern the petition for obtaining Letters of Administration. In John Feransic Anthony Gonsalves vs. Agnesmary Conception Rebell, AIR 2001 Bombay 372, the Bombay High Court did not frame any issue with regard to the applicability of the Limitation Act. It, however, held that the delay of 20 years will dis-entitle the legatee from executing the same and that relying upon Section 141 of the Indian Succession Act 1923 which provides that if a Legatee is bequeathed to a person whose name is given as an executer of the will he shall not take the lessee unless he proves the will or signifies, manifests an intention to act an executor and held that the delay of 20 years established that the executor had manifested his intention not to act as an executor.
22. The law of limitation is a law of repose based on rules of estoppel. It serves an important purpose of bringing finality to state of affairs which have prevailed in the knowledge of parties for sufficiently long period of time. The life must go on and that past events should not intervene to bring uncertainty to the common course of events which engulf the citizen. The law of limitation affirms free and uninterrupted flow of events. Where a legal right has not been enforced, for long period of time, it should not be permitted to be put into motion to disturb the normal events. The residuary Article 137 as interrupted in the Kerela State Electricity Board Trivendrum (supra) applies to all transactions where the limitation is not
6
specifically provided. It fixes a period of three years for taking action when the right to apply accrues. In cases of grant of probate or Letters of Administration of the deceased expressing his/her will, for arrangements of his/her affairs after his/her death the propounder must bring an action for grant of Letters of Administration or probate as early as possible. The applicability of residuary clause under the Limitation Act serves this purpose. The properties cannot be left un-administered for a longer period of time. These may change hands by transfer bringing its administration to uncertainty and disturb the rights which may accrue in favour of such transferee. The present case offers an example of such facts. In the twenty years in which the will was not brought into light the properties in certain states have changed hands many times. The pro-pounder therefore is under obligation to satisfy the court that he has no knowledge about the execution of the will."
The petitioner has not been able to satisfactorily explain the delay beyond three years. There is absolutely no pleadings as to when the applicant came to know about the execution of the will. The pleadings go to show that he had knowledge of the will from the date it was executed and had full knowledge of the date of death of Late Pt. Triyugi Narain.
For the aforesaid reasons I find that this application is barred by limitation. Sri P.N. Saxena Senior Advocate, then made a prayer that this application should be treated as caveat in other applications on the ground that there is a will in favour of the applicant, the validity of which has not been considered by the Court. The prayer is allowed. The Testamentary Case is disposed of with the directions that this petition shall be treated as caveat in other testamentary suits.
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Sri J. Nagar states that the objections in testamentary case no. 28 of 2005 may be treated as rejoinder affidavit to the caveat of Sri Ram Singh. Let a copy be served on all other applicants namely in testamentary suit no. 2 of 1998, 15 of 1999, 6 of 2000, 7 of 2000 and let the plaintiffs in these suits file replication to the caveat of Sri Ram Singh.
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