When Does the Right to Seek Probate Accrue? Supreme Court Clarifies Limitation Under Article 137 and Restricts Summary Rejection Under Order VII Rule 11 CPC
Case Name: Sanjay Sharma @ Sanjay Bhardwaj v. Krishnadhan Khaware & Ors.
Date of Judgment: 15 July 2026
Citation: 2026 INSC 708
Bench: Justice Sanjay Karol & Justice Vipul M. Pancholi
Held: The Supreme Court held that an application for probate is not automatically barred merely because it is filed more than three years after the death of the testator. While Article 137 of the Limitation Act, 1963 applies to probate proceedings, the right to apply accrues only when it becomes necessary to seek probate, and not necessarily on the date of the testator’s death. The Court further held that questions relating to limitation based on the date of knowledge and the genuineness or suspicious nature of a Will involve mixed questions of law and fact, which cannot be summarily decided under Order VII Rule 11 CPC. Accordingly, the orders of the District Court and the High Court rejecting the probate petition at the threshold were set aside, and the matter was remanded for adjudication on merits.
Summary: The appeal arose from the rejection of a probate application filed by the executor of a Will executed by Shrilal Singhania. The probate petition, instituted on 31 August 2005, sought probate of a Will dated 15 April 1995. The District Judge, Deoghar, rejected the petition on an application under Order VII Rule 11 CPC, holding that it was barred by limitation since the testator had died on 7 June 1995 and the probate proceedings were initiated almost ten years later. The High Court of Jharkhand affirmed the District Court’s decision.
Before the Supreme Court, the principal issue was whether the probate petition was barred by limitation under Article 137 of the Limitation Act, 1963. The Court observed that the Indian Succession Act, 1925 prescribes no specific limitation period for filing probate proceedings. Consequently, Article 137 applies as the residuary provision. However, the Court reiterated the settled principle that the limitation period does not commence automatically upon the death of the testator. Instead, the right to seek probate accrues only when circumstances make it necessary to invoke the jurisdiction of the probate court.
Relying on the decisions in Kunvarjeet Singh Khandpur v. Kirandeep Kaur, Sameer Kapoor v. State, and the Bombay High Court’s judgment in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani, the Court reaffirmed that the right to apply for probate is a continuous right, capable of being exercised so long as the purpose of the Will survives. Mere delay in approaching the court may raise suspicion requiring explanation but does not create an absolute statutory bar of limitation.
Applying this principle to the present case, the Court held that the necessity to seek probate arose only when the respondents acted inconsistently with the Will by executing a General Power of Attorney on 8 August 2005. Since the probate petition was filed shortly thereafter on 31 August 2005, it was well within the limitation period contemplated under Article 137.
The Court also examined the legality of rejecting the probate petition under Order VII Rule 11 CPC. It held that the courts below had exceeded the limited scope of that provision by recording findings regarding the suspicious nature and validity of the Will itself. Such issues necessarily require appreciation of evidence and cannot be adjudicated in summary proceedings. The Court reiterated that where limitation depends upon disputed facts, including the date on which the right to sue or apply accrued, the issue becomes a mixed question of law and fact which must be decided only after trial. Consequently, rejection of the probate petition at the threshold was held to be legally unsustainable.
Decision: The Supreme Court allowed the appeal, set aside the orders of the District Judge and the judgment of the Jharkhand High Court, and restored the probate proceedings to the competent Civil Court for adjudication on merits in accordance with law.