IMPORTANT POINT
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 after the death of the deceased as long as the right to do so survives and the object of the trust exists or any part of the trust remains to be executed.

JUDGMENT :

Heard Mr. S. Chamaria, the learned counsel appearing on behalf of the petitioner and Mr. D Kalita, the learned counsel appearing on behalf of the respondent.

2. This is an application under Article 227 of the Constitution challenging the legality and validity of the order dated 02.05.2023 passed by the learned District Judge, Tinsukia in Misc.(J) Case No.04/2023 whereby the application for condonation of delay of 1443 days was allowed.

3. Mr. S Chamaria, the learned counsel appearing on behalf of the petitioner drawing the attention of this Court to the application so filed under Section 5 of the Limitation Act 1963 (for short, the Act of 1963) by the respondent herein submitted that the said application is completely vague and does not explain as to why it has taken seven years for the purpose of filing the application seeking grant of probate. He further submits that there is nothing mentioned in the application as to from what reliable source, the respondent herein had got the information that his mother had executed a registered will. He submits that the said will on the face of it appears to be suspicious. The learned counsel by referring to the impugned order of the learned Trial Court submitted that the learned Trial Court completely failed to take into account the well settled principles as to when a delay can be condoned. The learned counsel for the petitioner submitted that the delay being inordinate, the negligence being self evident, and the laches on the part of the respondent being apparent even if there is a sufficient cause shown, the Court ought not to have condoned the delay. In that regard, the learned counsel has drawn the attention of this Court to the judgment of the Supreme Court rendered in the case of Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur & Ors reported in (2008) 8 SCC 463 as well as recent judgment of the Supreme Court in the case of Ramesh Nivrutti Bhagwat Vs. Surendra Manohar Parakhe, reported in (2020) 17 SCC 284. The said judgments have been placed before this Court to support his submissions that the period of limitation in terms with Article 137 of the Act of 1963 for the purpose of filing an application for grant of a probate commences on the date of the death of the testator.

4. On the other hand, Mr. D Kalita, the learned counsel appearing on behalf of the respondent submits that this is a case where there was no necessity of filing an application for condonation of delay, inasmuchas, a reading of Article 137 of the Act of 1963 would show that the period of three years has to be reckoned from the date when the right to apply accrues upon the applicant and in the instant case, it is only when the respondent herein got a copy of the registered will dated 21.11.2013 on 25.09.2020, the period of limitation at best could have been reckoned from there and as the application was filed on 15.03.2021, the same was within the period of limitation. He further submitted that an application for grant of a probate in respect of a will is not a case where a right is sought. It is a case where, a legal recognition is sought to be given to the registered will or the last will of the testator, which is nothing but a moral duty which is imposed upon the executor. The learned counsel, therefore, submitted that unless and until the right to seek the probate of the will survives, it is a continuous right. In that regard, Mr. D Kalita, the learned counsel appearing for the respondent refers to the judgment of the Supreme Court in the case of Sameer Kapoor Vs. the State through Sub-Division reported in (2020)12 SCC 480.

5. I have heard the learned counsels appearing on behalf of the parties and have given due consideration to the respective submissions.

6. From a perusal of the application being Misc.Probate Case No.04/2021 and reading the same with the application under Section 5 of the Act of 1963, it transpires that the respondent herein who is the applicant came to learn from some reliable sourc