The right to apply for probate 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, if created, remains to be executed.

JUDGMENT - B. LENTIN, J.:---The petitioner seeks Letters of Administration with the Will annexed of his father Daulatram Jamnadas Sadarangani (referred to hereafter as "the deceased"), who died on 3rd January, 1974. The caveatrix is the petitioner's sister and the deceased's daughter. In her affidavit-in-support of the caveat she resists the petitioner on the ground that Will which is in the handwriting of her brother Kanayalal with whom the deceased was not on good terms is a forgey as the signature on the Will is not of her father, and "appears to have been forged after the death of my father" and one of the attesting witnessess Dr. Tapan Bhattacharya have been prevailed upon to attest the document and further that the said Will cannot be the free Will of her father. At the hearing, I was invited to raise the issue of limitation which being a point of law I did, though not averred in the caveatrix's affidavit.

2. The following issues were raised :---

"1. Whether suit is barred by Law of Limitation ?

2. Whether the writing dated 11th February, 1968 is the last Will and Testament of the deceased ?

3. Whether the said writing is a forgery as stated in paras 4, 8 and 11 of the affidavit in support of the caveat ?

4. Whether the said writing is not the free Will of the deceased as stated in paras 9 and 20 of the said affdavit ?

5. What relief, if any, is the petitioner entitled to ?"

3. The petitioner led the evidence of one of the attesting witnesses Tapan Kumar Bhattacharya. The caveatrix examined herself as a witness.

4. The gist of the evidence of Tapan Bhattacharya who is the Project Manager in Central Electronics Ltd. at Ghaziabad, is that between November/December 1965 till July/August 1968 he was the deceased's tenant and next-door neighbour in the deceased's building. Thereafter Bhattacharya shifted to Santa Cruz and thence to Delhi in June 1977. During Bhattacharya's stay in the deceased's building, he and the decease were on visiting terms. On 11th February, 1968 at about 10-00 a.m. at the deceased's behest, Bhattacharya went to the deceased's flat. Two other persons were already there. The deceased told Battacharya that he wanted Bhattacharya to attest his Will which he, the deceased, was writing out. The deceased wrote for about 10 minutes. Thereafter the deceased asked his younger son Kanayalal had copied and thereafter signed the writing in the presence of Bhattacharya and Kanayalal. The deceased then asked Bhattacharya to sign the writing as a witness. Bhattacharya did so in the presence of the deceased and Kanayalal. The deceased then took paper from Bhattacharya and gave it to Kanayalal and asked him to sign it as a witness. Kanayalal did so in the presence of the deceased and Bhattacharya identified the writing dated 11th February, 1961 (Ex. A) as the one which was executed by the deceased and attested by Bhattacharya and Kanayalal that morning. Bhattacharya also identified his signature, Kanayalal's signature, and the signature of the deceased on the writing. When the deceased signed the writing that day his signature was not smudged. He was about 60 years of age when he signed the writing. His physical and mental conditions were normal as usual.

5. Mr. Dalpatrai however invited me to reject Bhattacharya's evidence on 10 counts.

(A) Relying on the caveatrix's version that she had never seen Bhattacharya before, and emphasising Bhattacharya's inability to produce the rent receipts, Mr. Dalpatrai urged that there was nothing beyond Bhattacharya's word that he was the deceased's tenant which according to Mr. Dalpatrai was an after-thought on Bhattacharya's part to account for his presence at the deceased's flat that day. On that aspect Bhattacharya's explanation is cogent, namely that he did not preserve the rent receipts after he shifted to Santa Cruz in July/August 1968. He also stated that he was in Government service in the Bhabha Atomic Research centre in whose records his residential address would be found

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