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.

JUDGMENT :

S.K.PANIGRAHI, J.

1. In this appeal, the appellants are challenging the order dated 27.12.2018 passed by the learned 2nd Additional Senior Civil Judge, Bhubaneswar in C.S. No.3/2016(T) arising out of Test Case No.14/2007.

2. It is apparent from the record that the Appellant No.1 (Lingaraj Nayak) has died during pendency of this FAO and the legal heirs of the deceased Appellant No.1 have been substituted vide order dated 01.08.2023 passed in I.A. No.1553 of 2019 arising out of FAO No.176 of 2019.

I. FACTUAL MATRIX OF THE CASE :

3. The brief facts of the case are as follows:

(i) The Appellant No.1 was the adopted son of Late Krushna Chandra Nayak, whereas the Respondent is his nephew.

(ii) During his lifetime, Late Krushna Chandra Nayak, purchased the schedule land on a lease-cum-sale basis from the Government of Odisha.

(iii) The Appellant No.1 had initiated probate proceedings vide TEST Case No.14 of 2007, before the District Judge, Khurda, Bhubaneswar. However, after a lapse of five years, he filed a petition seeking to withdraw the said probate proceeding.

(iv) The District Judge, Khurda, Bhubaneswar, rejected the petition of Appellant No. 1 for withdrawal vide order dated 24.04.2012. Aggrieved by this, the Appellant No. 1 challenged the said order before this Court in W.P.(C) No. 13599 of 2012.

(v) Meanwhile, the Respondent filed a petition seeking transposition as a petitioner in the probate proceedings, contending that the Will was in favor of both parties, and therefore, probate could not be declined at the instance of one party alone.

(vi) This Court, by order dated 12.05.2014, disposed of W.P.(C) No. 13599 of 2012 with a direction to the District Judge, Khurda, Bhubaneswar, to reconsider both the application of withdrawal and the application for transposition.

(vii) Subsequently, the Respondent was transposed as the petitioner in the probate proceedings before the District Judge.

(viii) Upon the grant of probate becoming contested, the matter was transferred to the 2nd Additional Senior Civil Judge, Bhubaneswar, for adjudication on merits, where it was renumbered as C.S. No. 03 of 2016 (T), arising out of TEST Case No. 14 of 2007.

(ix) Based on the pleadings of the parties, and after recording the evidence, the 2nd Additional Senior Civil Judge, Bhubaneswar, by the order dated 27.12.2018, allowed probate of the Will in favor of the Respondent and Appellant No.1. Aggrieved by this decision, the present appellants have filed this appeal.

II. SUBMISSIONS ON BEHALF OF THE APPELLANTS :

4. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions

(i) The Appellants submitted that the Respondent is neither a descendant of the testator nor has he rendered any significant services to him during his lifetime.

(ii) The Appellants further submitted that the execution of the alleged Will is suspicious, as the probate proceedings were initiated 25 years after the testator’s death. Krushna Chandra Nayak passed away in the year 1990, while the probate petition was filed in 2007. Such an extraordinary delay casts serious doubts about the authenticity of the Will and warrants the dismissal of the probate proceedings. Furthermore, as the testator passed away in 1990, the probate proceedings are barred by the law of limitation.

(iii) The Appellants further submitted that the alleged ‚Will‛ stipulates that the Respondent and Appellant No. 1 shall jointly own Plot No. 83, measuring 32 square feet, in equal shares. However, the ‚Will‛ is silent on the ownership and alienation of the remaining 9