The right to apply for probate accrues when a challenge is made to the Will or a dispute arises, not necessarily from the date of death of the testator, as per the interpretation of Article 137 of the Limitation Act, 1963.

JUDGMENT

Moushumi Bhattacharya, J. - The defendant no.1 seeks rejection of the plaintiff's application for grant of probate which was converted to a contentious cause and consequently a testamentary suit by an order dated 20th April, 2016.

2. The application for probate; PLA No. 64 of 2015, was filed by one Suresh Agarwal, the executor of the last Will and Testament of Hanuman Prasad Agarwal, who died on 13th June 1993. The last Will and Testament was signed by the testator on 16th April 1989. The application for grant of probate sets out the heirs and legal representatives of Hanuman Prasad Agarwal (the testator) namely his 3 sons. The probate petition was filed on 8th September 2014. The present application for rejection of the probate proceedings was filed on 8th February 2018 by the defendant no.1, Satyanarain Agarwal, who is one of the sons of the testator.

3. The ground urged for rejection of the application for probate is that the application is barred by the laws of limitation.

4. Mr. Abhrajit Mitra, learned Senior Counsel appearing for the applicant/defendant No. 1, submits that the application for grant of probate should be dismissed on the ground that the application is barred by limitation. According to counsel, the application for grant of probate was filed after more than 22 years since the testator died on 13 June 1993. There is no explanation as to the reason for the delay in filing the application. Counsel relies on Article 137 of the Limitation Act, 1963 as being applicable for grant of probate and letters of administration. Counsel relies on a number of decisions on this issue including Kunvarjeet Singh Khandpur vs. Kirandeep Kaur, (2008) 8 SCC 463 ; Krishan Kumar Sharma vs. Rajesh Kumar Sharma, (2009) 11 SCC 537 and Paritosh Patra vs. Angur Bala Rana, (2014) AIR Calcutta 133 and Ramesh Nivrutti Bhagwat vs. Surendra Manohar Parakhe Manu,2019 SC 1392 /for the proposition that the right to apply for probate accrues on the date of death of the testator. According to counsel, if Article 137 of the Limitation Act applies, then an application for grant of probate has to be filed within three years from the date when the right to make such application accrues. In the present case, since the deceased expired on 13th June 1993, the application for his last Will and testament dated 16th April 1989 should have been filed within three years from the date of death of the testator and also that there is no explanation for the delay or the grounds for seeking exemption from limitation as had been necessitated in Church of Christ Charitable Trust And Educational Charitable Society vs. Ponniamman Educational Trust, (2012) 8 SCC 706 . Reliance is placed on Harsh Vardhan Lodha vs. Ajay Kumar Newar,2016 120 2 CWN 673 ; Umesh Chandra Saxena vs. Administrator General, U.P. Allahabad,1999 AI(All) 109 for the proposition that the principles of Order VII Rule 11 would apply to all proceedings which are governed by the laws of limitation.

5. Counsel further contends that the property forming the subject matter of the Will had been dealt with by a registered Deed of Gift dated 5th March 2011 by reason of which the plaintiff and the alleged beneficiaries of the Will were deemed to have knowledge of the said Deed of Gift as on the date of execution and registration. [Ref: Dilboo (Smt.) (Dead) by LRS. Vs. Dhanraji (Smt.) (Dead), (2000) 7 SCC 702 and GPT Healthcare Pvt Ltd vs Soorajmull Nagarmullm,2018 SCC OnLine Cal 3800 ]. It is also urged that a party cannot be expected to retain evidence as to the condition of the deceased or his mental and physical state as on the date of execution of the alleged Will and gross injustice would therefore be caused inasmuch as it may not be possible for the defendant no.1 to produce evidence as to the physical/mental condition of the deceased as on the date of execution of the Will in order to establish the invalidity thereof after a gap of 22 years. Counsel cites State of Kerala vs. V.R. Kalliyanikutty