2026 INSC 708
Sanjay Sharma @ Sanjay Bhardwaj v. Krishnadhan Khaware & Ors.
HEAD NOTES
A. Indian Succession Act, 1925 — Probate — Limitation — Article 137, Limitation Act, 1963 — Right to apply.
(Paras 3–6)
Held, the Indian Succession Act prescribes no specific period of limitation for filing an application for probate. Consequently, Article 137 of the Limitation Act applies. However, the right to apply for probate does not necessarily accrue on the death of the testator; it accrues when it becomes necessary for the executor to seek probate, such as when the Will is disputed or hostile claims are asserted.
B. Probate Proceedings — Continuous right — Delay in filing.
(Paras 5–6)
Held, the executor's right to seek probate is a continuing right which survives so long as the object of the Will remains to be executed. Mere delay in seeking probate does not create an absolute bar of limitation, though unexplained delay may invite greater judicial scrutiny regarding the genuineness of the Will.
C. Order VII Rule 11(d), Code of Civil Procedure, 1908 — Rejection of plaint/petition — Limitation — Mixed question of law and fact.
(Para 7)
Held, where limitation depends upon the date on which the right to apply accrued or the date of knowledge of hostile action, the issue becomes a mixed question of law and fact. Such questions cannot be decided summarily under Order VII Rule 11(d) CPC without permitting parties to lead evidence.
D. Order VII Rule 11 CPC — Scope — Merits of Will.
(Para 7)
Held, while deciding an application under Order VII Rule 11 CPC, the Court cannot adjudicate upon the genuineness, validity or suspicious circumstances surrounding a Will. Such issues require full trial after appreciation of evidence and lie beyond the limited jurisdiction under Order VII Rule 11.
E. Probate — Cause of action — Hostile assertion of rights.
(Paras 5–6)
Held, where the executor remains undisputed, limitation begins only when a hostile act inconsistent with the Will necessitates obtaining probate. In the present case, execution of a General Power of Attorney contrary to the Will constituted the event giving rise to the right to apply.
F. Rejection under Order VII Rule 11 — Impropriety.
(Paras 7–8)
Held, rejection of the probate petition at the threshold on the ground of limitation was legally unsustainable since the issue required adjudication on evidence. The Courts below exceeded their jurisdiction by entering into the merits of the Will while exercising powers under Order VII Rule 11 CPC.
Analysis of Facts
The executor under a Will dated 15 April 1995 filed an application for probate on 31 August 2005 before the District Judge, Deoghar.
The objectors sought rejection of the probate petition under Order VII Rule 11 CPC contending that the application was barred by limitation because it had been filed nearly ten years after the death of the testator.
Accepting the objection, the District Judge rejected the probate petition. The High Court affirmed the order.
Before the Supreme Court, it was contended that the necessity to seek probate arose only when the widow of the testator executed a General Power of Attorney on 8 August 2005 asserting rights inconsistent with the Will.
The Supreme Court accepted this contention. It held that probate proceedings are governed by Article 137 of the Limitation Act, but limitation commences only when the right to apply accrues, namely, when obtaining probate becomes necessary. Since the probate petition was filed shortly after the hostile act, it was within limitation.
The Court further held that both the Trial Court and the High Court had exceeded the limited scope of Order VII Rule 11 CPC by making observations on the suspicious nature and merits of the Will without recording evidence. The orders were therefore set aside and the matter was remanded for trial.
Analysis of Law
The Supreme Court laid down the following principles:
The Indian Succession Act contains no prescribed limitation period for filing a probate petition.
Article 137 of the Limitation Act governs probate applications.
The right to apply for probate is a continuing right and does not automatically arise on the death of the testator.
Limitation begins when circumstances make it necessary for the executor to seek probate, particularly upon hostile assertion of rights adverse to the Will.
Delay in seeking probate is not an absolute legal bar, though it may require satisfactory explanation.
Order VII Rule 11 CPC permits rejection only where the bar is apparent on the face of the pleadings.
Questions relating to accrual of cause of action or limitation involving disputed facts cannot be decided summarily.
The validity, genuineness or suspicious circumstances surrounding a Will cannot be examined while deciding an application under Order VII Rule 11 CPC.
Ratio Decidendi
An application for probate is governed by Article 137 of the Limitation Act, 1963, but the right to apply does not necessarily accrue on the death of the testator. It accrues when circumstances make it necessary for the executor to obtain probate, such as upon assertion of hostile rights against the Will. Since determination of such accrual ordinarily involves mixed questions of law and fact, a probate petition cannot be rejected under Order VII Rule 11(d) CPC on the ground of limitation, nor can the Court examine the merits or suspicious circumstances of the Will at the threshold stage.
