Patna High Court
Manoj Kumar Sinha vs Mankesh Kumar Sinh on 6 August, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.199 of 2018
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Manoj Kumar Sinha Son o f Late Kashinath Sah, Resident of Village -
Madhopur Tanasariya, P.O. - Madhopur Tansariya, Police Station Turkauliya,
District- East Champaran.
... ... Appellant/s
Versus
1. Mankesh Kumar Sinh Son of Late Kashinath Sinha, Resident of Village -
Madhopur Tausariya, P.O. Madhopur, P.S. - Turkauliya, District- East
Champaran.
2. Vijay Kumar Sinha Son of Late Kashinath Sinha, Resident of Village -
Madhopur Tausariya, P.O. Madhopur, P.S. - Turkauliya, District- East
Champaran.
4. Kuamri Usha Sinha Wife of Chandreshwar Prasad, D/o Late Kashinath
Sinha, Resident of Mohalla - Ekauna Chandmari, P.S. Banjaria, District-
East Champaran.
5. Sachindra Prasad Son of Late Madho Prasad Resident of Gopalpur, P.S.
Gopalpur, District- West Champaran.
6. Archana Kuamri D/o Sachindra Prasad, Resident of Gopalpur, P.S.
Gopalpur, District- West Champaran.
7. Sudhanshu Shekhar (Minor) Son of Sachindra Prasad, Under the
guardianship of their father namely Sachindra Prasad. Resident of Gopalpur,
P.S. Gopalpur, District- West Champaran.
8. Arpana Kumari (Minor) D/o Sachindra Prasad, Under the guardianship of
their father namely Sachindra Prasad. Resident of Gopalpur, P.S. Gopalpur,
District- West Champaran.
9. Prabhash Chandra Dutta Son of Late Shatish Chandra Dutta, Resident of
Mohalla Naya Tola, Kalambagh Chowk, Muzaffarpur, P.S. Kaji
Mohammadpur, District- Muzaffarpur.
10. Rohan Kumar (Minor) Son of Prakash Chandra Dutta, Under the
guardianship of their father namely Prakash Chandra Dutta, Resident of
Mohalla Naya Tola, Kalambagh Chowk, Muzaffarpur, P.S. Kaji
Mohammadpur, District- Muzaffarpur.
11. Radhi Kumari (Minor) D/o Prakash Chandra Dutta, Under the guardianship
of their father namely Prakash Chandra Dutta, Resident of Mohalla Naya
Tola, Kalambagh Chowk, Muzaffarpur, P.S. Kaji Mohammadpur, District-
Muzaffarpur.
12. Rajat Kumari D/o Prabhas Chandra Dutta, Resident of Mohalla Naya Tola,
Kalambagh Chowk, Muzaffarpur, P.S. Kaji Mohammadpur, District-
Muzaffarpur.
... ... Respondent/s
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Appearance:
For the Appellant/s : Mr. Arvind Kumar Singh, Advocate
: Mr. Dilip Kumar Tondon, Advocate
: Mr. Rohit Ranjan, Advocate
Patna High Court MA No.199 of 2018 dt.06-08-2025
2/8
For the Respondent/s : Mr. Shakti Suman Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
CAV JUDGMENT
Date: 06-08-2025
Heard learned counsel for the appellant and
learned counsel for the respondents.
2. The present appeal has been filed under
section 299 of the Indian Succession Act,1925. Against the
order dated 16.12.2017 by Subordinate Judge 1st, Motihari in
Probate Case No. 40 of 2012 in which the probate case has been
dismissed on the ground of limitation.
3. The brief fact of the case is that the deceased
father Kashi Nath Sinha of appellant executed a registered will
dated 26-06-2000 in favour of the appellant and his two brothers
in respect of the his maternal property fully detailed in Schedule
no. 1 of the record. It has been further stated that the testator
died on 30-06-2000 leaving behind three sons and wife and one
daughter and husband and children of predeceased daughter
who are opposite party in this case. It has been further stated
that the testator was resident of village Madhopur Tansaraia,
P.S. Turkauliya District East Champaran which is within the
jurisdiction of the Learned Trial Court. The will was typed by
Mr. Mohan Prasad, at instruction of the testator and he was
executed the will in his own pen in presence of the attesting
Patna High Court MA No.199 of 2018 dt.06-08-2025
witnesses and the attesting witnesses have also put their mark in
presence of the testator and he himself presented the same
before the Registration Authority and admitted the execution of
the will and the said will was last will of the testator.
4. In the present Probate Case the petitioners/
appellants have examined four witnesses in which AW-1 Jai Rai,
AW-2 Manoj Kumar Sinha, AW-3 Mohan Prasad and AW- 4
Urmila Sinha. In support of the Probate case the Appellant filed
Ext.1 original will and Ext. 2 Original death certificate of the
testator.
5. Learned Counsel for the appellant submitted
that the impugned judgment is not sustainable in the eye of law
or on facts. Learned trial Court has not applied its judicial mind
and erroneously passed the judgment. He further submitted that
after filing of aforesaid Probate case the respondents herein
appeared and filed their written statement admitting the
execution of will in favour of present appellants and also
admitting the fact that the property under will belongs to
deceased testator and submitted that they have no objection if
probate/Letters of administration be granted in favour of present
appellants.
5.i. He further submitted that after efflux of time
Patna High Court MA No.199 of 2018 dt.06-08-2025
it became necessary to get the will probated to avoid any future
litigation and to respect the verdict under the will and
accordingly the said probate case has been filed 28.09.2012 as
suggested by the Counsel that no specific limitation period is
scheduled under law for filing of probate application.
5.ii. He further submitted that the witness of will
have been examined who supported and proved the execution of
will and further original will and death certificate of testator has
been filed and marked as exhibit 1 and 2 respectively. He further
submitted that since non have contested the execution of will
nor raised any question of it being filed belatedly, just no
question of limitation arose in the case and further no issue on
the point of limitation has been framed by the learned trial Court
nor with respect to title of property of testator, but on erroneous
consideration the learned trial Court dismissed the probate case
on the ground of limitation without considering the fact that no
objection have been raised by any of the near relatives of
deceased and further despite holding that petitioners have
proved the execution of will and presumed the will to be
genuine, on erroneous consideration of law laid down by a
decision reported in 2017(1) P.L.J.R. at page 489, without
considering the fact that in said decision objection has been
Patna High Court MA No.199 of 2018 dt.06-08-2025
made by the near relatives and thus not applicable in this case as
per law laid down by Hon'ble Supreme Court by a judgment
reported in 2008(8) S.C.C. at page 463, whereby the Hon'ble
Supreme Court has held that "once execution and attestation are
proved suspicion of delay no longer operates".
6. On deeply scrutinize facts and circumstances
of the present case this Court is at view that the Apex Court
while considering the question of application of Limitation Act
for grant of Letter of Administration in the case of Kunvarjeet
Singh Khandpur Vs. Kirandeep Kaur and Ors since reported in
(2008) 8 SCC 463 has held as follows:-
"15. Rejecting Mr. Dalapatrai's contention,
I summarise my conclusions thus:
(a) under the Limitation Act no period is
advisedly prescribed within which an
application for probate, letters of
administration or succession certificate
must be made;
(b) the assumption that under Article 137
the right to apply necessarily accrues on
the date of the death of the deceased, is
unwarranted;
(c) such an application is for the Court's
permission to perform a legal duty created
by a Will or for recognition as a
testamentary trustee 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, if
Patna High Court MA No.199 of 2018 dt.06-08-2025
created, remains to be executed;
(d) the right to apply would accrue when it
becomes necessary to apply which may not
necessarily be within 3 years form the date
of he deceased's death.
(e) delay beyond 3 years after the
deceased's death would arouse suspicion
and greater the delay, greater would be the
suspicion;
(f) such delay must be explained, but cannot
be equated with the absolute bar of
limitation; and
(g) once execution and attestation are
proved, suspicion of delay no longer
operates.
The conclusion 'b' is not correct while the
conclusion 'c' is the correct position of law"
7. The Hon'ble Gujarat High Court in the case of
Habibbhai Ishabhai Sandhi vs Ibrahimbhai Ishabhai Sandhi
on 24 March, 2023 held that:
"5.5 The Supreme Court in Kunvarjeet
Singh Khandpur (supra), stated that the
crucial expression was "right to apply
under Article 137", it was observed, The
crucial expression in the petition (sic
Article) is "right to apply". In view of what
has been stated by this Court, Article 137 is
clearly applicable to the petition for grant
of Letters of Administration. As rightly
observed by the High Court in such
proceedings the application merely seeks
recognition from the Court to perform a
duty because of the nature of
C/FA/1098/2019 CAV JUDGMENT
DATED: 24/03/2023 the proceedings it is a
Patna High Court MA No.199 of 2018 dt.06-08-2025
continuing right.
5.6 This Court in Bhupendrabhai
Samjubhai v. Diwaliben [(2013) 3 GLR
2177], held that delay in making
application for letters of administration of
will, which in that case was filed after 15
years would not be a vitiating aspect. It was
held that delay will not bar such
application.
5.7 Therefore, it is well settled that right to
apply for probate or letters of
administration under the Succession Act,
1955 is held to be a continuing right. The
"right to apply" within the meaning of
Article 137 will be a continuing right. It
was judicially explained that in such
proceedings, the application for probate or
letters of administration only seeks
recognition from the court to perform duty.
It was held that purport of law is that by
virtue of the very nature of the proceedings,
it is continuing right."
8. Considering the facts and record of the present
case and the settled law held by the Hon'ble Apex Court , I am
of the view that treating the application of the appellant for
probate of the will to be barred by limitation could hardly
sustain. It was not correct to view the application to be barred
by Article 137 of the Limitation Act. The very nature of the
proceedings and the nature of cause which is continuous would
entitled the appellant to get letters of administration or Probate
of the property detailed in Schedule no.1 of the Probate Petition
Patna High Court MA No.199 of 2018 dt.06-08-2025
on the basis of the will executed by the testator.
9. For the reasons as stated above, this appeal is
allowed and the judgment dated 16.12.2017 by Subordinate
Judge 1st, Motihari in Probate Case No. 40 of 2012 is set aside.
Appellant is entitled for grant of Letters of Administration of
registered will dated 26.06.2000 executed by Kashinath Sinha.
10. Accordingly, this appeal is allowed.
11. Office is directed to send back the trial Court
records and proceedings along with a copy of this judgment to
the trial Court, forthwith, for necessary compliance, if any.
(Ramesh Chand Malviya, J)
Mayank/-
AFR/NAFR AFR
CAV DATE 01.07.2025
Uploading Date 06.08.2025
Transmission Date N/A
