Facts

The testator executed a Will in 1995. Following his death, the executor named in the Will filed a probate petition in 2005, nearly ten years later, seeking the court’s approval of the Will.

The Trial Court and the High Court dismissed the probate petition, holding that it had been filed beyond the prescribed limitation period and was therefore time-barred.

Issue

Does the right to seek probate automatically become barred if an application is not filed within three years of the testator’s death?

Decision

The Supreme Court answered in the negative, holding that there is no absolute rule requiring a probate application to be filed within three years of the testator’s death.

The Court observed that:

  • The right to apply for probate does not necessarily arise immediately upon the death of the testator.
  • It arises when it becomes necessary to obtain probate, such as when the Will is disputed or when someone acts contrary to the rights created under the Will.
  • Consequently, the mere passage of time does not automatically render a probate petition barred by limitation.

Why did the Court allow the appeal?

The Supreme Court noted that:

  • A dispute concerning the property first arose in August 2005, when another person asserted rights inconsistent with the Will.
  • The executor filed the probate petition during the same month.

Since the necessity to seek probate arose only after the dispute emerged, the Court held that the application was filed within the limitation period and was therefore maintainable.

Court Observation

The Court also clarified the scope of Order VII Rule 11 of the Code of Civil Procedure, 1908.

It held that, while deciding an application under Order VII Rule 11 CPC, the court cannot examine whether the Will is genuine, valid, or surrounded by suspicious circumstances. Such questions involve appreciation of evidence and must be decided only after a full-fledged trial.

A probate petition is not automatically barred merely because it is filed more than three years after the testator’s death. The crucial consideration is when the right to seek probate actually accrued. If the need to obtain probate arises later due to a dispute, challenge, or interference with rights under the Will, the petition may still be filed within the applicable limitation period.

Conclusion

This judgment reinforces that delay by itself is not sufficient to reject a probate application. Courts must determine when the cause of action or the necessity to seek probate first arose, rather than mechanically calculating limitation from the date of the testator’s death. It also reiterates that questions regarding the genuineness or validity of a Will cannot be decided at the preliminary stage under Order VII Rule 11 CPC, but must be adjudicated after a proper trial on evidence.

Case title – Sanjay Sharma @ Sanjay Bharadwaj v. Krishnadhan Khaware & Ors. (2026)

“This article has been researched and prepared by Gayatri Sonje, Legal Research Intern at LegalRath.“

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Editorial Note: This article has been reviewed by the LegalRath Editorial Team to ensure legal accuracy, editorial quality, and clarity before publication.