[Cites 26, Cited by 0]
Patna High Court
Arun Kumar vs Smt. Niramal Devi on 18 December, 2025
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
FIRST APPEAL No.361 of 2001
======================================================
Arun Kumar Son of Late Shyamlal Prasad, Resident of Village Thawe
Bideshi Tola, P.S. Manjhagarh (Thawe) District- Gopalganj.
... ... Appellant/s
Versus
1. Smt. Niramal Devi W/o Late Shyam lal Prasad, Resident of Village Thawe
Bideshi Tola, P.S. Manjhagarh (Thawe) District- Gopalganj.
2.1. Krishna Mohan Prasad S/o late Birendra Prasad, Resident of Mohalla -
Jaitpur, Ward No. - 04, P.S. Pupri, District- Sitamarhi.
2.2. Sri Mohan Prasad @ Gopal Prasad S/o Late Birendra Prasad, Resident of
Mohalla - Jaitpur, Ward No. - 04, P.S. Pupri, District- Sitamarhi.
2.3. Nilu Rani W/o Kanhaiya Prasad, D/o Late Birendra Prasad, Resident of
Mohalla - Jaitpur, Ward No. - 04, P.S. Pupri, District- Sitamarhi.
2.4. Ragini Kumari W/o Jagdish Prasad, R/o Flat No. 205, Sri Krishna Dham
Apartment, Near Waxpol Factory, Butti Chowk, District Ranchi (Jharkhand).
3. Arbind Kumar Son of Bishwanath Prasad, Resident of Village P.S. Mirganj,
District- Gopalganj.
4. Rohit Kumar Son of Bishwanath Prasad, Resident of Village P.S. Mirganj,
District- Gopalganj.
5. Ritesh Kumar Son of Bishwanath Prasad, Resident of Village P.S. Mirganj,
District- Gopalganj.
6. Rina Kumari D/o Bishwanath Prasad, Resident of Village P.S. Mirganj,
District- Gopalganj.
7. Bishwanath Prasad Son of Late Radha Kishun Prasad, Under the
guardianship of Bishwanath Prasad, Resident of Village P.S. Mirganj,
District- Gopalganj.
8. Sheela Kumari D/o Late Shyamlal Prasad, Resident of Village Thawe
Bideshi Tola, P.S. Manjhagarh, District- Gopalganj.
... ... Respondent/s
======================================================
WITH
FIRST APPEAL No. 375 of 2001
======================================================
Arun Kumar Son of Late Shyam Lal Prasad, Address - Resident of Village
Thawe Bideshi Tola, P.S. Manjhagarh (Thawe) District- Gopalganj.
... ... Appellant/s
Versus
1. Smt. Niramal Devi W/o late Shyam Lal Prasad, Address - Resident of
Village Thawe Bideshi Tola, P.S. Manjhagarh (Thawe) District- Gopalganj.
Patna High Court FA No.361 of 2001 dt.18-12-2025
2/29
2.1. Krishna Mohan Prasad S/o Late Birendra Prasad, Resident of Mohalla -
Jaitpur, Ward No. - 04, P.S. Pupri, District- Sitamarhi.
2.2. Srimohan Prasad @ Gopal Prasad Son of late Birendra Prasad, Resident of
Mohalla - Jaitpur, Ward No. - 04, P.S. Pupri, District- Sitamarhi.
2.3. Nilu Rani W/o Kanhaiya Prasad, D/o Late Birendra Prasad, Resident of
Mohalla - Jaitpur, Ward No. - 04, P.S. Pupri, District- Sitamarhi.
2.4. Ragini Kumari W/o Jagdish Prasad, R/o Flat No. 205, Sri Krishna Dham
Apartment, Near Waxpol Factory, Butti Chowk, District Ranchi (Jharkhand).
3. Arbind Kumar Son of Bishwanath Prasad, Resident of Village P.S. Mirganj,
District- Gopalganj.
4. Rohit Kumar Son of Bishwanath Prasad, Resident of Village P.S. Mirganj,
District- Gopalganj.
5. Ritesh Kumar Son of Bishwanath Prasad, Resident of Village P.S. Mirganj,
District- Gopalganj.
6. Rina Kumari D/o Bishwanath Prasad, Resident of Village P.S. Mirganj,
District- Gopalganj.
7. Bishwanath Prasad Son of Bishun Prasad, Resident of Village P.S. Mirganj,
District- Gopalganj.
8. Sheela Kumari D/o Late Shyam lal Prasad, Resident of Village Thawe
Bideshi Tola, P.S. Manjhagarh, District- Gopalganj.
... ... Respondent/s
======================================================
WITH
FIRST APPEAL No. 182 of 2003
======================================================
1.1. Smt. Usha Devi Widow of Late Gupteshwar Prasad @ Gupteshwar Prasad
Jaiswal, Resident of Village - Sarenja, P.O. - Sarenja, P.S. - Rajpur, District
Buxar. at present Charitarwan (Nagar Parishad), Buxar, P.S. - Buxar Town,
District- Buxar.
1.2. Ram Krishna Jaiswal Son of Gupteshwar Prasad @ Gupteshwar Prasad
Jaiswal, Resident of Village - Sarenja, P.O. - Sarenja, P.S. - Rajpur, District
Buxar. at present Charitarwan (Nagar Parishad), Buxar, P.S. - Buxar Town,
District- Buxar.
1.3. Bal Krishna Jaiswal Son of Gupteshwar Prasad @ Gupteshwar Prasad
Jaiswal, Resident of Village - Sarenja, P.O. - Sarenja, P.S. - Rajpur, District
Buxar. at present Charitarwan (Nagar Parishad), Buxar, P.S. - Buxar Town,
District- Buxar.
1.4. Raja jaiswal Son of Gupteshwar Prasad @ Gupteshwar Prasad Jaiswal,
Resident of Village - Sarenja, P.O. - Sarenja, P.S. - Rajpur, District Buxar. at
present Charitarwan (Nagar Parishad), Buxar, P.S. - Buxar Town, District-
Buxar.
1.5. Nitu Kumari Wife of Anil Kumr Jaiswal, D/o late Gupteshwar Prasad
Jaiswal Resident of Nai Satti, Mugalsarai, Distt. - Chandauli (U.P.).
1.6. Ritu Kumari Wife of Sunil Kr. Jaiswal, D/o Late Gupteshwar Prasad Jaiswal,
Jamania Kasba, Distt. - Ghazipur (U.P.).
Patna High Court FA No.361 of 2001 dt.18-12-2025
3/29
1.7. Kujju Kumari Wife of Pankaj Kumar, D/o Late Gupteshwar Prasad Jaiswal,
Resident of Ramanujganj, P.O. and P.S. Ramanujganj, Distt. - Ramanujganj,
Chhatisgarh.
... ... Appellant/s
Versus
Dina Nath Prasad S/o Late Yadunath Prasad, Resident of Village - Serenja,
P.O - Serenja, P.S. - Rajpur, District- Buxar, At present Sarenja Gola Charitar
Ban, Ward no. 9, P.O. - Buxar, P.S. - Buxar Town, District- Buxar.
... ... Respondent/s
======================================================
Appearance : (In FIRST APPEAL No. 361 of 2001)
For the Appellant/s : Mr. Vishwajeet Kr. Mishra, Advocate
For the Respondent/s : Mr. Shashi Shekhar Dvivedi, Sr. Advocate
Mr. Parth Gaurav, Advocate
Mr. Anshu Raj Singh, Adv.
Mr. Aditya Singh, Adv.
Mr. Rahul Kumar, Adv.
Mr. Ashutosh Kr. Pandey, Adv.
(In FIRST APPEAL No. 375 of 2001)
For the Appellant/s : Mr. Vishwajeet Kr. Mishra, Advocate
For the Respondent/s : Mr. Shashi Shekhar Dvivedi, Sr. Advocate
Mr. Parth Gaurav, Advocate
Mr. Anshu Raj Singh, Adv.
Mr. Aditya Singh, Adv.
Mr. Rahul Kumar, Adv.
Mr. Ashutosh Kr. Pandey, Adv.
(In FIRST APPEAL No. 182 of 2003)
For the Appellant/s : Mr. B.M.Kumar Singh, Advocate
For the Respondent/s : Mr. Rajni Kant Jha, Advocate
Mr. Shantanu Bhattacharjee, Advocate
Mr. Prisu Snehil, Advocate
Mr. Aman Anand, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE DR. ANSHUMAN
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE DR. ANSHUMAN)
Date : 18-12-2025
Heard learned Counsel for the appellants and
learned Counsel for the respondents of all three appeals.
2. First Appeal No.361 of 2001 has been filed
against the Judgment and decree dated 22.06.2001 passed by the
Patna High Court FA No.361 of 2001 dt.18-12-2025
learned District Judge, Gopalganj, in Title Suit No.27 of 1987.
First Appeal No.375 of 2001 has been filed against the judgment
and decree dated 22.06.2001 passed by the learned District
Judge, Gopalganj, in Probate Case No.11 of 1997 and First
Appeal No.182 of 2003 has been filed against the judgment and
decree dated 28.05.2003 passed in Title Suit No.15 of 1992,
arising out of Probate Case No.21 of 1990 by the learned 1 st
Additional District Judge, Buxar, by which the suit has been
allowed in favour of the plaintiff-respondent by granting probate
to the defendant-appellant.
3. Vide Order No.41 dated 27.02.2020, the
Hon'ble Single Bench has formulated a question, i.e., "what
would be meaning of accrual of cause of action for the
purpose of reckoning the period in the background of
intricacies having been referred hereinabove in the context
of principle laid down by the Apex Court as referred
hereinabove relating to applicability of Article 137 of the
Limitation Act, 1963 relating to a petition for probate/letter
of administration?".
4. Question has been framed and matter has been
placed before the Division Bench after taking permission of
Hon'ble the Chief Justice and only thereafter, these appeals have
Patna High Court FA No.361 of 2001 dt.18-12-2025
come before the Division Bench for answering those questions
of reference, which we have already acknowledged in Order
No.46 dated 17.11.2025 that is to say applicability of Article
137 of the Limitation Act, 1963 as well as relating to the starting
point of applicability in a petition for probate/letters of
administration under Indian Succession Act.
5. Learned Counsel for the appellants submits
that at the time of passing order of reference, Hon'ble Single
Judge has categorically observed in the case of Ramanand
Thakur Vs. Parmanand Thakur, reported in AIR 1982 Patna
87, and held that none of the provisions of the Limitation Act
would be applicable but Hon'ble Supreme Court of India in the
case of Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur &
Others reported in (2008) 8 SCC 463 as well as in the case of
Krishna Kumar Sharma Vs. Rajesh Kumar Sharma reported
in 2009 (3) PLJR 80 (SC), the Hon'ble Apex Court pleased to
hold that Article 137 of the Limitation Act would be applicable
wherein limitation of three years is prescribed so applicability
of Limitation Act is found out of controversy. He further
submits that the point for consideration is what shall be the
cause of action is most fatal whether the date of death of testator
or any subsequent date on which interest of executor is found
Patna High Court FA No.361 of 2001 dt.18-12-2025
eclipsed. He submits that application of Limitation Act was
completely ruled out in the case of Smt. Nalini Mishra &
Others Vs. Braj Kishore Mishra reported in 2010(4) PLJR
355.
6. Learned Counsel for the appellant relied on
three judgments of Hon'ble Supreme Court of India, namely,
Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur & Others
reported in (2008) 8 SCC 463 in Civil Appeal No.2464 of 2008
decided on 3rd April, 2008, secondly on the judgment of
Krishna Kumar Sharma Vs. Rajesh Kumar Sharma reported
in 2009 (3) PLJR 80 (SC), in Civil Appeal No.1967 of 2009
decided on 27th March, 2009, both by two judges Bench of
Hon'ble Supreme Court and third judgment is Ramesh
Nivrutti Bhagwat Vs. Dr. Surendra Manohar Parakhe
reported in 2020 (3) BLJ 190-SC in Civil Appeal No.1399 of
2010 decided on 4th of October, 2019. In the said judgment, the
judgments of Kunvarjeet Singh Khandpur Vs. Kirandeep
Kaur & Others (Supra), Kerala State Electricity Board,
Trivandrum Vs. T.P. Kunhaliumma, (1977) 1 SCR 996,
Sameer Kapoor and Another Vs. State through Sub-
Divisional Magistrate South, New Delhi and Others, 2019
Online SCC 630 (SC) :: 2019 (4) BLJ 328 (SC) and Lynette
Patna High Court FA No.361 of 2001 dt.18-12-2025
Fernandes Vs. Gertie Mathias, 2018 (1) BLJ 92 (SC) ::
(2018) 1 SCC 271 as well as Rukumini Devi Vs. Narendra
Lal Gupta (1985) 1 SCC 144 were discussed. He submits that
in the light of said three Judges Bench decision of Hon'ble
Supreme Court passed in Ramesh Nivrutti Bhagwat (supra),
the reference as placed before the Hon'ble Divison Bench has
been well answered. He further submits that though the
issue/reference shall be decided against him, but he submits that
it is his abundant duty to intimate before this Court about the
correct position of law. Therefore, he submits that the finding of
Ramesh Nivrutti Bhagwat (supra) is the correct position of
law.
7. Learned Counsel for the respondent appearing
in the initial two appeals, namely, F.A. Nos.361 and 375 of 2001
relied on the following judgments:-
I. AIR 1960 Supreme Court 1309 (The State of Madras Vs.
C.P. Agencies)
II. AIR 1977 Supreme Court 640 (Gurdit Singh and Others
Vs. Munsha Singh and Others etc.)
III. AIR 1982 Patna 87 :: {(1982) BLJ 205 {Ramanand
Thakur Vs. Parmanand Thakur}
IV. AIR 1983 Bombay 268 {Vasudev Daulatram Sadarangani
Vs. Sajni Prem Lalwani}
Patna High Court FA No.361 of 2001 dt.18-12-2025
V. First Appeal No.102 of 1980 (Prabhunath Singh &
Another Vs. Sukhdeo Rai)
VI. (2008) 8 SCC 463 {Kunvarjeet Singh Khandpur Vs.
Kirandeep Kaur and Others}
VII. AIR 2007 SC 1812 {Alchemist Limited & Another
Vs. State Bank of Sikkim & Others}
VIII. (2009) 13 SCC 241 {Rajiv Modi Vs. Sanjay Jain and
Others}
IX. AIR 2009 SC 3247 {Krishna Kumar Sharma Vs.
Rajesh Kumar Sharma}
X. 2010(4) PLJR 355 {Nalini Mishra Vs. Braj Kishore
Mishra}.
XI. AIR 2004 Supreme Court 4286 (Y. Abraham Ajith and
Others Vs. Inspector of Police, Chennai and Another).
XII. Civil Misc. Case No.1117 of 2018 (Arun Kumar
Agrawal Vs. Anil Agrawal).
8. Counsel for rest other respondents submits
that he is adopting the arguments of Mr. Parth Gaurav, learned
Counsel for the respondents in first two appeals. The Counsel
appearing on behalf of the appellant in First Appeal No.182 of
2003 has adopted the argument of Mr. Vishwajeet Kumar
Mishra, learned Counsel for the appellant in first two appeals.
9. In the case of State of Madras Vs. C.P.
Patna High Court FA No.361 of 2001 dt.18-12-2025
Agencies reported in AIR 1960 Supreme Court 1309, this
judgment of Hon'ble Supreme Court of India is on Section 80 of
the Code of Civil Procedure, 1908 and, therefore, it has no
applicability in the present case.
In the case of Gurdit Singh (supra) the question
of applicability of the Limitation Act, 1963 has been tested and
the dispute discussed therein the said judgment is not relating to
probate or letters of administration. Therefore, this Court finds
that the said judgment has no applicability in the present case.
In the case of Ramanand Thakur (supra) it has
been held and discussion on applicability of Article 137 of the
Limitation Act, 1963 on application in probate or letters of
administration and it has been found that they are not governed
by any article of Limitation Act and it has been held that
"......Therefore, while holding that Article 137 of the new
Limitation Act applies to any petition or application filed under
any Act, we do not feel any difficulty to come to the conclusion
that so far as the application for grant of a Probate or Letters of
Administration is concerned, they are not moved by any Article
of Limitation Act.....".
In the case of Vasudev Daulatram Sadarangani
(supra), paragraph-16 states as follows:
Patna High Court FA No.361 of 2001 dt.18-12-2025
"(a) under the Limitation Act
no period is advisedly prescribed within
which application of probate, 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
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
from the date of the 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
Patna High Court FA No.361 of 2001 dt.18-12-2025
longer operates.
Conclusion (b) is not correct
while Conclusion (c) is the correct position
of law."
In case of Prabhunath Singh (supra) it has been
held by Hon'ble High Court that after consideration of the
judgment of Vasudev Daulatram Sadarangani (supra) in
paragraphs 25 and 26 it has been held that " ...the right to apply
would accrue when it became necessary to apply which may not
necessarily be within 3 years from the date of the death of
testator. The delay is required to be explained but it cannot be
equated with the absolute bar of limitation and once execution
and attestatioin are proved, suspicion of delay no longer
operates.
In view of the above settled principal of law and
in view of our above finding regarding point No.(i), no
suspicion arose in the present case and the right to apply accrue
only on the institution of partition suit and, therefore, in my
opinion, the application for the grant of probate or letters of
administration is not barred."
The case of Kunvarjeet Singh Khandpur
(supra) and the case of Vasudev Daulatram Sadarangani
(supra) have been discussed and it has been held that Section
Patna High Court FA No.361 of 2001 dt.18-12-2025
137 of the Limitation Act shall apply on the application for
grant of probate or letters of administration as right to file the
application is a continuous right which can be exercised at any
time after death of the testator. It has been held that an
application for grant of probate or letters of administration
merely seeks recognition from Court to perform a duty. The
application for granting or revoking probate or letters of
administration is covered by Article 137 of the Limitation Act,
1963.
In the case of Alchemist Limited & Another
(supra) is relating to Company Law in which question of
territorial jurisdiction has been tested. Therefore, this case has
no direct applicability in answering the present reference.
The case of Rajiv Modi (supra) is a case relating
to criminal matter in which question of applicability of cause of
action within the territorial jurisdiction relating to complaint
case has been tested. Hence, this judgment has no applicability
in answering the reference.
The case of Krishna Kumar Sharma (supra) on
the point of applicability of Article 137 in granting probate and
letters of administration has been discussed and in this case both
judgments ie., Vasudev Daulatram Sadarangani (supra) as
Patna High Court FA No.361 of 2001 dt.18-12-2025
well as Kunvarjeet Singh Khandpur (supra) have been
discussed and same finding has come that Article 137 of the
Limitation Act, 1963 has applicability on the application for
grant of probate or letters of administration.
In the case of Nalini Mishra (supra), it has been
held that finding of Mr. Dalpatri's judgment was discussed and
filing the probate after a long delay was directed to be accepted,
where the Will was executed on 17.03.1936 and testamentary
for issuance of letters of administration was filed in the year
2003-04.
In the case of Y. Abraham Ajith and Others
(supra), the cause of action relating to complaint case has been
explained and this matter is not related to the Indian Succession
Act. Therefore, we are of the firm view that this judgment has
no application in the present case.
In the case of Arun Kumar Agrawal (supra)
again, the same judgment of Vasudev Daulatram Sadarangani
(supra) and Kunvarjeet Singh Khandpur (supra) were
discussed and the view laid down in those judgments as well as
on the judgment of Krishna Kumar Sharma (supra) was
affirmed. In this case probate case was challenged under Order
VII Rule 11(d) and under Article 137 of the Limitation Act;
Patna High Court FA No.361 of 2001 dt.18-12-2025
rather it was held that the probate case is not liable to be
dismissed under the said provisions of law because cause of
action accrues not after the death of testator but it depends on
the facts of each case as to when cause of action accrues.
10. After placing the case laws, the Counsel of
both appellants and respondents jointly submit that whatever be
the controversies which are subject to reference before this
Hon'ble Court, have now been settled in the latest judgment
and, as such, there is no controversy left and the matter has
already been settled by Hon'ble the Supreme Court in its latest
judgment on this issue by Hon'ble three Judges Bench, namely,
Naresh Nivrutti Bhagwat Vs. Dr. Surendra Manohar
Parakhe reported in 2020 (3) BLJ 190-SC.
11. We after perusal of the judgment discussed
by both the parties reached on the conclusion that after decision
of Kunvarjeet Singh Khandpur (Supra) as well as judgment
held in Krishna Kumar Sharma (Supra), the appellate Court
was pleased to quote that Article 137 of the Limitation Act
would be applicable. Therefore, whatever be the earlier
decision, prior to the above mentioned two decisions, the
question of non-application of Article 137 of the Limitation Act,
1963 shall not arise. So far as the question relating to point of
Patna High Court FA No.361 of 2001 dt.18-12-2025
applicability of limitation in a petition for probate/letters of
administration shall arise which has to be answered, for that the
analysis of three Judges Bench decision i.e., Ramesh Nivrutti
Bhagwat (Supra) is self sufficient in the opinion of the Court.
The said judgment is very much clear that Indian Succession
Act, 1925 does not prescribe a specified period of limitation for
grant of probate or for grant of letters of administration or
moving application for cancellation of probate or letters of
administration. The question of reference of the present appeals
and the finding at para-10 of the said judgment are identical.
Para-10 of the said judgment states as follows:
"As evident, the appellant's
application for cancellation of the letters of
administration was rejected concurrently.
The only question urged is whether there is
any limitation prescribed and if not, whether
the residuary provision (Article 137 in the
schedule to the Limitation Act, 1963-
hereafter "the Act") applies and for which
the starting point of limitation is the date of
alleged knowledge of the grant of letters of
administration."
12. The discussion has been made in Ramesh
Nivrutti Bhagwat (Supra) at paragraphs-11 to paragraph-16
which state as follows:
Patna High Court FA No.361 of 2001 dt.18-12-2025
"11.The relevant provisions
dealing with recognition in respect of grant
of probate, of letters of administration in
respect of the probate granted, and
cancellation of probate (or letters of
administration) of the Indian Succession Act,
1925, read as follows:-
"Section 228.
Administration, with copy annexed, of
authenticated copy of Will proved abroad.-
When a Will has been proved and deposited
in a Court of competent jurisdiction situated
beyond the limits of the State, whether within
or beyond the limits of 1 India, and a
properly authenticated copy of the Will is
produced, letters of administration may be
granted with a copy of such copy annexed.
...... ..... ...
Section 263. Revocation or
annulment for just cause.- The grant of
probate or letters of administration may be
revoked or annulled for just cause.
Explanation.- Just cause
shall be deemed to exist where-
(a) the proceedings to obtain
the grant were defective in substance; or
(b) the grant was obtained
fraudulently by making a false suggestion, or
suggestion, or by concealing from the Court
something material to the case; or
Patna High Court FA No.361 of 2001 dt.18-12-2025
(c) the grant was obtained by
means of an untrue allegation of a fact
essential in point of law to justify the grant,
though such allegation was made in
ignorance or inadvertently; or
(d) the grant has become
useless and inoperative through
circumstances; or
(e) the person to whom the
grant was made has willfully and without
reasonable cause omitted to exhibit an
inventory or account in accordance with the
provisions of Chapter VII of this Part, or has
exhibited under that Chapter an inventory or
account which is untrue in a material
respect.
Illustrations
(i) The Court by which the
grant was made had no jurisdiction.
(ii) The grant was made
without citing parties who ought to have
been cited.
(iii) The Will of which
probate was obtained was forged or revoked.
(iv) A obtained letters of
administration to the estate of B, as his
widow, but it has since transpired that she
was never married to him.
(v) A has been taken
administration to the estate of B as if he had
Patna High Court FA No.361 of 2001 dt.18-12-2025
died Intestate, but a Will has since been
discovered.
(vi) Since probate was
granted, a latter Will has been discovered.
(vii) Since probate was
granted, a codicil has been discovered which
revokes or adds to the appointment of
executors under the Will.
(viii) The person to whom
probate was, or letters of administration
were, granted has subsequently become of
unsound mind.
..... ... .. .....
276. Petition for probate.-(1)
Application for probate or for letters of
administration, with the Will annexed, shall
be made by a petition distinctly written in
English or in the language in ordinary use in
proceedings before this Court in which the
application is made, with the Will or, in the
cases mentioned in sections 237, 238 and
239, a copy, draft, or statement of the
contents thereof, annexed, and stating-
(a) the time of the testator's death,
(b) that the writing annexed is his last Will
and testament,
(c) that it was duly executed,
(d) the amount of assets which are likely to
come to the petitioner's hands, and
(e) when the application is for probate, that
Patna High Court FA No.361 of 2001 dt.18-12-2025
the petitioner is the executor named in the
Will.
(2) In addition to these
particulars, the petition shall further state
(a) when the application is to
the District Judge, that the deceased at the
time of his death had a fixed place of abode,
or had some property, situate within the
jurisdiction of the Judge; and
(b) when the application is to
a District Delegate, that the deceased at the
time of his death had a fixed place of abode
within the jurisdiction of such Delegate.
(3) Where the application is
to the District Judge and nay portion of the
assets likely to come to the petitioner's hands
is situate in another State, the petition shall
further state the amount of such assets in
each State and the District Judges within
whose jurisdiction such assets are situate."
12. The Indian Succession
Act, 1925 does not prescribe a specific
period of limitation for the grant of probate,
or for moving an application for
cancellation of probate or letters of
administration. The residuary entry Article
137 of the Act, which covers proceedings for
which no period of limitation is stipulated in
the Act, provides for a three year period of
limitation. Article 137 reads as follow:-
Patna High Court FA No.361 of 2001 dt.18-12-2025
Description Period of Limitation Time
from which period
begins to run
37. Any other application for which no
period of limitation is provided elsewhere in
this Division. Three years When the right to
apply accrues
13. This issue was considered
in Kunvarjeet Singh Khandpur vs.
Kirandeep Kaur & Ors., (2008) 8 SCC 463.
This court negatived the plea that since the
Act prescribes no period of limitation in
regard to matters concerning grant of
probate or letters of administration, there is
no time limit. The court followed the
decision in the Kerala State Electricity
Board, Trivandrum vs. T.P. Kunhaliumma,
(1977) 1 SCR 996 which took note of the
change in the collocation of words in Article
137 of the Limitation Act, 1963 compared
with Article 181 of the Limitation Act, 1908,
and held that applications contemplated
under Article 137 are not applications
confined to the Code of Civil Procedure,
1908. In the older Limitation Act of 1908,
there was no division between applications
In specified cases and other applications, as
in the Limitation Act, 1963. The court held in
Kerala State Electricity Board (supra) that:-
"The words "any other
Patna High Court FA No.361 of 2001 dt.18-12-2025
application" under Article 137 cannot be
said on the principle of ejusdem generis to
be applications under the Civil Procedure
Code other than those mentioned in Part I of
the third division. Any other application
under Article 137 would be petition or any
application under any Act. But it has to be
an application to a court for the reason that
Sections 4 and 5 of the 1963 Limitation Act
speak of expiry of prescribed period when
court is closed and extension of prescribed
period if applicant or the appellant satisfies
the court that he had sufficient cause for not
preferring the appeal or making the
application during such period.
... ..... ........
22. The conclusion we reach
is that Article 137 of the 1963 Limitation Act
will apply to any petition or application filed
under any Act to a civil court. With respect
we differ from the view taken by the two
judge bench of this Court in Athani
Municipal Council case and hold that Article
137 of the 1963 Limitation Act is not
confined to applications contemplated by or
under the Code of Civil Procedure."
14. Applying the ratio in
Kerala Electricity Board (supra), the court,
in Kunvarjeet Singh Khandpur (supra)
observed that:
Patna High Court FA No.361 of 2001 dt.18-12-2025
"the crucial expression in the
petition 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 the proceedings it is a continuing
right."
The court then concluded that
the right to apply for probate accrues on the
date of death of the testator.
15. Recently, in Sameer
Kapoor and Another v. State through Sub-
Divisional Magistrate South, New Delhi
and Others, 2019 Online SCC 630 (SC) ::
2019 (4) BLJ 328 (SC), the context was
slightly different; the probate was issued by a
foreign court. The executor sought letters of
administration in an Indian court (like in the
present case), under Section 228. The court
dealt with the objection of limitation, and
noticed, firstly, that Kunvarjeet Singh
Khadapur (supra) had ruled about
applicability of Article 137 for grant of
probate in the first instance. Drawing a
distinction from the grant of probate (or
letters of administration) and the recognition
of that, under Section 228, the court (in
Patna High Court FA No.361 of 2001 dt.18-12-2025
Sameer Kapoor (supra)) held as follows:
"It can be said that in a
proceeding, or in other words, in an
application filed for grant of probate or
letters of administration, no right is asserted
or claimed by the applicant. The applicant
only seeks recognition of the court to
perform a duty. Probate or letters of
administration issued by a competent court is
conclusive proof of the legal character
throughout the world. That the proceedings
filed for grant of probate or letters of
administration is not an action in law but it is
an action in rem. As held by this Court in the
case of Kunvarjeet Singh Khandpur
(supra), an application for grant of probate or
letters of administration 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 created, remains to be
executed."
16. The decision in Lynette
Fernandes v. Gertie Mathias, (2018) 1
SCC 271 ::2018 (1) BLJ 92 (SC), dealt with
the precise issue of the period of limitation
applicable for an application for cancellation
Patna High Court FA No.361 of 2001 dt.18-12-2025
of a probate or letters of administration. This
court held as follows:
"One must keep in mind that
the grant of probate by a Competent Court
operates as a judgment in rem and once the
probate to the Will is granted, then such
probate is good not only in respect of the
parties to the proceedings, but against the
world. If the probate is granted, the same
operates from the date of the grant of the
probate for the purpose of limitation Under
Article 137 of the Limitation Act in
proceedings for revocation of probate. In this
matter, as mentioned supra, the Appellant
was a minor at the time of grant of probate.
She attained majority on 09.09.1965. She got
married on 27.10.1965. In our considered
opinion, three years limitation as prescribed
Under Article 137 runs from the date of the
Appellant attaining the age of majority i.e.
three years from 09.09.1965. The Appellant
did not choose to initiate any proceedings till
the year 25.01.1996 i.e., a good 31 years
after she attained majority. No explanation
worthy of acceptance has been offered by the
Appellant to show as to why she did not
approach the Court of law within the period
of limitation. At the cost of repetition, we
observe that the Appellant failed to produce
any evidence to prove that the Will was a
Patna High Court FA No.361 of 2001 dt.18-12-2025
result of fraud or undue influence. The same
Will has remained unchallenged until the
date of filing of application for revocation.
No acceptable explanation is offered for such
a huge delay of 31 years in approaching the
Court for cancellation or revocation of grant
of probate."
13. Thereafter, it has been held in paragraph-17
of the said judgment that the petition for revocation of letters of
administration was time barred. Upon bare reading of the above
mentioned discussion of all the decisions, particularly, three
Judges Bench, it transpires to us that the following types of
petitions are filed under the Succession Act, particularly,
relating to issuance of probate/letters of administration:
I. Application for issuance of probate;
II. Application for issuance of letters of
administration;
III. Application for revocation of probate;
IV. Application for revocation of letter of
administration;
14. So far as the right to apply for probate
accrues on the date of death of testator, the application for grant
of probate or letters of administration is not an application in
law, but is an application in rem. It is basically an application
Patna High Court FA No.361 of 2001 dt.18-12-2025
for grant of probate or letters of administration for the Court's
permission to perform a legal duty created by a Will or for
recognition as a testamentary trusty. It 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.
So far as the restriction casted in the judgment of Kunvarjeet
Singh Khandpur (supra) and Krishna Kumar Sharma
(supra), it is only to the extent that Article 137 of the Limitation
Act shall not create any absolute bar on an application for grant
of probate or letters of administration; rather it is a continuous
right which can be exercised any time after death of the
deceased as long as the right to do so survives. Delay beyond
three years after death of the deceased would create suspicion,
and greater the delay, greater would be the suspicion. Such
delay must be explained but cannot be equated with an absolute
bar of limitation and once execution and attestation are proved,
suspicion of delay no longer operates. But Hon'ble three Judges
Bench in Ramesh Nivrutti Bhagwat (supra) creates absolute
bar in filing of an application for cancellation or revocation for
grant of probate. If the concerned party does not approach the
court of law within the period of limitation, then, according to
Patna High Court FA No.361 of 2001 dt.18-12-2025
law laid down by Hon'ble Supreme Court, the petition for
revocation of letters of administration would be time barred and
period for limitation would be counted from the date of grant of
probate, as the grant of probate by a competent Court operates
as a judgment in rem. Once the probate to the Will is granted,
then such probate is good not only in respect of the parties to the
proceeding but also against the world at large and if probate is
granted, the same operates from the date of grant of probate for
the purpose of limitation under Article 137 of the Limitation Act
in proceeding for revocation of probate as held in Lynette
Fernandes (supra). Hence, the reference as framed is answered
hereinbelow:
Article 137 of the Limitation Act, 1963 is
applicable on application for issuance Probate/Letters of
Administration and application for revocation of Probate/Letters
of Administration. An application for issuance of probate/letters
of administration under Article 137 of the Limitation Act does
not create any absolute bar; rather it confers a continuous right,
which may be exercised at any time after the death of the
deceased as long as right to do so survives. But, Article 137
creates a situation wherein a delay beyond three years after
death of the deceased give rise to suspicion, and greater the
Patna High Court FA No.361 of 2001 dt.18-12-2025
delay, greater would be the suspicion. But such delay must be
explained in accordance with the provisions laid down in
Sections 4 and 5 of the Limitation Act, 1963. Once execution
and attestation are proved, suspicion of delay no longer
operates. But, on the other hand, application for cancellation or
revocation for grant of probate/letters of administration shall
create absolute bar if the concerned party does not approach the
court of law within the period of limitation, and the period of
limitation shall be counted from the date of grant of probate due
to the reason that the grant of probate by a competent Court
operates as a judgment in rem and once the probate or Will is
granted, such probate is good with respect to parties to the
proceeding as well as for the whole world. The reference is
hereby answered.
15. After answering the reference it shall be
appropriate for this Court to direct the office to place all the first
appeals before appropriate Bench for consideration on merit.
16. This Court appreciate the honest and fair
attitude of Mr. Vishwajeet Kumar Mishra, learned Advocate
appearing on behalf of the appellant in first two appeals, who
despite the fact that the three Judges Bench decision of the
Hon'ble Supreme Court governs the reference against him, has
Patna High Court FA No.361 of 2001 dt.18-12-2025
conducted himself as a true and honest advocate whose prime
duty is to assist the Court first. The Court records its
appreciation for his diligent efforts and the clarity with which he
assisted in the adjudication of the matter. The Court commends
his sense of duty and professional commitment.
(Dr. Anshuman, J)
Bibek Chaudhuri, J: I agree
(Bibek Chaudhuri, J)
Mkr./-
AFR/NAFR AFR
CAV DATE 01.12.2025
Uploading Date 18.12.2025
Transmission Date 18.12.2025
