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THE GAUHATI HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Kardak Ete, J.
Tapak Tali S/o Lt. Tamer Tali - Appellant
Vs.
Yayi Tali W/o Lt. Tapik Talim - Respondent
FAO No. 1 of 2021
Decided On : 02-04-2024
Probate - Limitation - Code of Civil Procedure, 1908, Indian Succession Act, 1925 - Section 96, Order XLI, Rule 1, Section 151, Section 299 - [Section 96, Order XLI, Rule 1, Section 151, Section 299]
Fact of the Case:
The appellant, an adopted son, contested the probate petition filed by the respondents, who were granted probate of a will executed in 1997. The appellant argued that the probate petition was time-barred, as it was filed 20 years after the death of the testator.
Finding of the Court:
The court found that the probate petition was not time-barred, as the respondents had been pursuing the matter since 2000 and were granted liberty to file the probate petition by a previous judgment. The court dismissed the appeal, stating that the probate petition was not barred by limitation.
Issues: The main issue was whether the probate petition was time-barred. The court refrained from considering other issues raised by the appellant.
Ratio Decidendi: The court held that the probate petition was not time-barred, as the respondents had been pursuing the matter since 2000 and were granted liberty to file the probate petition by a previous judgment. The court also considered the provisions of the Limitation Act, 1963 and Section 14, which allows exclusion of time for proceedings pursued in good faith.
Final Decision: The appeal was dismissed, and the probate petition was deemed not time-barred.
Heard Mr. P. Taffo, learned Counsel for the appellant and Mr. M. Pertin, learned Senior Counsel assisted by Ms. T. Y. Bhutia, learned counsel for the respondents.
2. This is an appeal under Section 96 read with Order XLI, Rule 1 and Section
151 of the Code of Civil Procedure, 1908 read with Section 299 of the Indian Succession Act, 1925, assailing the judgment and order dated 14.10.2020, passed by the District Judge, Sessions Division, Aalo, West Siang District, in Aalo Probate Case No. 01/2019 whereby the probate petition has been allowed and granted in favour of the petitioners /respondents herein.
3. The brief facts of the case projected by the appellant is that the appellant is an adopted son of Lt. Tapik Tali. He was adopted in the year 1981 as Lt. Tapik Tali had no male issue and having four daughters. The adoption of the appellant was done in presence of villagers as per the customary law known as “Rogum” which is prevalent in the community. Lt. Tapik Tali made a WILL on 22.08.1997 in favour of the respondents, the respondent No. 1 being the wife of Lt. Tapik Tali and respondents No. 2, 3, 4 & 5, the daughters. Lt. Tapik Tali died on 02.09.1999.
4. After the death of Lt. Tapik Tali, Testator, the respondent No. 1 being the wife filed a case before the Deputy Commissioner, West Siang District, Aalo being Misc. Case No. 02/2000 which was subsequently transferred to the Additional District Judge, Basar and re-numbered as BSR/SC No. 14 of 2016. The Deputy Commissioner, West Siang District Aalo passed an order on 08.06.2000 referring the matter to Kebang (village authority). The learned Additional District Judge, Basar decided the BSR/SC No. 14/2016 vide judgment and order dated 23.07.2018, with an observation that the petitioners (respondents herein) ought to have invoked the provisions of the Indian Succession Act, 1925 in order to seek probate of the WILL of Lt. Tapik Tali and they having not exhausted that remedy in right earnest are not precluded from raising the same in future. It has also been observed that since the case was never filed for obtaining probate of the WILL, the present decision does not debar the petitioners (respondents herein) from filing probate petition under the Indian Succession Act, 1925 in future. Finally, the learned Additional District Judge, Basar has held that the legality or probate of WILL of Lt. Tapik Tali ,Testator, cannot be decided by the village authority under the Assam Frontier (Administration of Justice) Regulation, 1945 as the village authority has no jurisdiction under the Indian Succession Act, 1925. Consequently, the order dated 08.06.2000 passed by the Deputy Commissioner, Aalo, referring the matter to the village authority, has been declared as non-est. Liberty was also given to the petitioners (respondents herein) to approach the Court for probate of WILL.
5. It is to be taken note that the judgment and order, dated 23.07.2018, passed by the learned Additional District Judge, Basar has never been put to challenge by the appellant.
6. The respondent No. 1 along with respondents No. 2, 3, 4 & 5 have approached the Addl. District Court, Basar by filing a probate case on 17.08.2018 which was registered as Probate Case No. 01/2018. Subsequently, the Probate Case 01.2018 was transferred to District Judge, Sessions Division, Aalo and renumbered as Aalo Probate Case No. 01.2019. The appellant filed a written statement and issues were framed. After due consideration of the materials and evidences, the learned District Judge, vide its judgment and order dated 14.10.2020, allowed the probate petition in the following order:-
The right to apply for probate is a continuous right that can be exercised anytime after death, and delay does not constitute an absolute bar, requiring evidence for limitation determination.
The right to apply for probate is continuous and not strictly bound by a time limit, provided the execution and attestation of the will are established following legal requirements.
Article 137 of the Limitation Act, 1963 applies to probate applications, allowing three years for filing while emphasizing that the right to apply is continuous, thus raising suspicion for delays bey....
Limitation applies to probate proceedings, but time spent in prior litigation may be excluded, allowing for a valid application for probate.
Probate grants are judgments in rem, triggering a strict three-year limitation period for revocation, with knowledge of the grant not resetting this period. There was no evidence of fraud or procedur....
A propounder must establish a will's valid execution and satisfy the court's conscience by dispelling all suspicious circumstances, including structural inconsistencies and inordinate, unexplained de....
An application for grant of probate or letter of administration seeks recognition of the Court to perform a legal duty created by a will and is a continuous right which can be exercised any time afte....
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