The accrual of the right to apply for probate and the determination of limitation is a mixed question of fact and law, and should be examined based on the averments made in the petition.

JUDGMENT

Vipin Sanghi, J. - The present appeal assails the order dated 02.03.2020 passed in TEST.CAS 74/2017, wherein the learned Single Judge has rejected the submission of the objector/appellant herein on issue no.1 regarding the petition being barred by limitation, by holding that the said issue could not be decided as a preliminary issue.

2. The appellant's plea before the learned Single Judge-that the petition preferred by the respondent, Ms. Raj Mullick seeking probate of the will dated 24.05.1996 of her deceased sister Mrs. Rani Mullick was barred by limitation, was premised on his claim that the said will had already been disputed by the appellant way back in the year 1998. According to the appellant, since the said will has been disputed in the year 1998 itself, the period of limitation of 3 years-as prescribed under Article 137 of the Limitation Act, had started to run against the respondent in 1998 and, therefore, the testamentary case filed in the year 2017 was well beyond the period of limitation. In support of this plea, the appellant/objector had placed reliance on a Division Bench judgment of this Court in Pratap Singh & Anr. vs. State & Anr., (2010) 118 DRJ 534 (DB)

3. The learned Single Judge while rejecting this preliminary objection, firstly placed reliance on a decision of the Supreme Court in Kunvarjeet Singh Khandpur vs. Kirandeep Kaur & Ors., (2008) 8 SCC 463, and secondly on the facts of the case. She observed that the question as to whether the said issue could be decided at the preliminary stage, when evidence had yet to be led by the parties, had to be examined with reference to the pleadings in the petition. By referring to Paras 2 and 13 of the petition preferred by respondent no.1, which inter alia refer to the holographic will of the testatrix, and that she was compelled to file the probate petition before the High Court to be able to deal with the debentures, shares and bonds etc. of certain companies, which were held by the testatrix Ms.Rani Mullick, the learned Single Judge held that at this stage, without the parties having led their evidence, it could not be determined whether the pleas taken by the petitioner were unwarranted and therefore, opined that the parties would have to lead their evidence in relation to the said issue.

4. It is thus evident that the learned Single Judge had left the determination of the issue of limitation open, to be decided after recording of evidence of the parties.

5. In support of the appeal, Mr. Ved Prakash Sharma, learned counsel for the appellant submits that in the present case, there was no disputed question of fact, since the appellant/objector had disputed the will in 1998 itself. The same is evident from the order dated 12.02.1998 passed by this Court in Suit No. 56/1985 and FAO(OS) 194/1996, wherein the fact that the will in question (set up by the respondent no.1) was disputed, was recorded and on that basis, not only the respondent no.1 but the other heirs of Ms. Rani Mullick were also impleaded as her legal heirs.

6. Mr.Sharma has relied upon, firstly the decision of a learned Single Judge of this Court in Amit & Ors. V. State of NCT of Delhi & Ors.,2017 244 DLT 202 and in particular on para 2 thereof, which reads as under:-

"2. No doubt, in view of the judgment of the Supreme Court In the case of Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur and Others, (2008) 8 SCC 46 limitation period for filing of a petition for probate Is three years under Article 137 of the Limitation Act, 1963 however, the period of three years commences when the cause of action accrues or the right to apply accrues. The need to file the probate petition i.e the cause of action to file the probate petition arises when the subject Will Is specifically denied by the objectors to the notice/knowledge of the appellants/petitioners or their predecessor-in-interest. It is only on th