Limitation Period for Applying for Probate of a Will: an Analysis Based on Court Judgments

Limitation Period for Applying for Probate of a Will an Analysis Based on Court Judgments

In a recent case the High Court of Calcutta has examined the question of limitation for applying for probate of a Will and has delivered a judgement on 11.06.2020.

As per the facts of the case, the testator died on 13th June 1993. He had made and signed a Will on 16th April 1989.

The application for probate was filed on 8th September 2014 by the executor named in the Will.  One of the legal heirs applied for rejection of the probate application on the ground that it is barred by Article 137 of the Limitation Act. Article 137 is a residuary clause and provides, for filing of a suit, within three years from the date when the right to sue accrues.

In the present case, it was argued that the right to file accrued on the date when the testator died, i.e. on 13.06.1993. Therefore, the application for probate should have been filed within three years from 13.06.1993.  But the same has been filed in September 2014, i.e. after 21 years without explaining the delay.

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The other party contended that the right to apply for probate accrues only when a challenge is made to the Will, or it is disputed. The time of three years does not run from the date of death of the testator.

The High Court has ruled that Article 137 applies to the cases of application for probate and the time envisaged will be activated once the right is denied, giving rise to a consequent need to assert the right. The right to file accrues when the Will is disputed, or it becomes necessary to apply for probate which may not necessarily be within three years from the date of the deceased’s death. 

The High Court followed the interpretation given to the words “When the right to sue accrues” (as appearing in Article 113 and Article 137 of the Limitation Act) by Hon’ble Supreme Court recently in a case of Shakti Bhog Food Industries Limited. In this case, it was held that Article 113 does not specify happening of a particular event for computing the limitation period. It only refers to the accrual of the cause of action based on which the right to sue would accrue. The period of limitation would begin from the time when the right to sue accrues and not necessarily from the time when the right to sue accrues first.

Recommended reading: Nomination is not a WILL

Applying the same principle in the present case, High Court has held that cause of action in case of probate cannot be interpreted to have occurred only at the time of death of the testator.

The Court further stated that Section 293 of the Indian Succession Act provides for a cooling-off period of expiration of 7 days from the day of the testator’s death before probate of a Will can be granted. There is no outer limit within which an executor has to take out an application for grant of probate.

The Legislature has deliberately provided no endpoint for filing such application. The purpose of probate is to give effect to the Will of the testator. It should not be defeated merely by delay on the part of executor.

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In an application for grant of probate, the applicant claims no right. There is a demand for permission of the court to perform a duty cast by the author of the testament upon the executor concerning the administration of his estate.

Right to file for probate is a continuous right and therefore, Article 137 cannot be construed as limiting the period to three years from the date of death of the testator. If done so, it would frustrate the very object of the law preserving the wishes of a testator.

The decision has made it clear that the period of limitation for matters under Article 137 of the Limitation Act, would begin from the time when the right to sue accrues based on a cause of action which may or may not have occurred at the first point of time.

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Can a divorce be filed outside India if marriage takes place in India?

When the decree is granted outside India

When it comes to matrimonial matters, the Indian Diaspora across the globe often gets fuddled up in conflict of Family laws. And especially when it comes to divorce, things are assumed to get all the more hay wired.

However little is it known that the position with respect to the matter pertinent is very much clear.

Indeed, the divorce petition can be filed as well as settled outside India even if the marriage has taken place in India.

As a general rule under Section 13 of the CPC, any foreign judgement is valid and conclusive in India if it does not falls under certain exceptions.

The Apex Court of India lay down and clarified the law for foreign matrimonial judgements in the country in the case of Y. Narsimha Rao and ors. vs. Y. Venkata Laxmi and anr.

Brief Facts of the case

  • Y. Narsimha Rao and Y. Venkata Laxmi were married in Tirupati, India as per Hindu Customs in 1975.
  • They separated in July 1978 and Mr. Rao filed a petition for dissolution of marriage in the Circuit Court of St. Louis County Missouri, USA.
  • The Circuit Court passed the decree for dissolution of marriage on February 19, 1980
  • On 2 November 1981 Mr. Rao married another woman.
  • Mrs. Laxmi filed a criminal complaint against Mr. Rao for the offence of bigamy.

Judgement under Section 13 of the CPC

Judgement

Although the Court did not recognize the decree passed by the US court but it did lay down the clear law with respect to divorce decree in such matters. The Court carved out the exceptions as to in which conditions the divorce decree would NOT be recognized in India.

Such exceptions are as follows:-

  • When the decree is granted by court which is not authorized by Indian courts to grant the same
  • When one side is not heard or his/her submission is not taken on record
  • When the divorce is granted on the ground which is not recognized under Indian matrimonial laws
  • When the proceedings are against principles of natural justice
  • When the decree is obtained by fraud

Thus if the divorce matter does not falls within the ambit of any of the exceptions mentioned here in above then it can be proceeded unhindered in any foreign court even if the marriage takes place in India.

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Nomination is not a WILL

Nomination-is-not-a-WILL

If you die intestate (without leaving a WILL document), The Natural law of succession will prevail

The Court in present case once again had to decide between Morality and Law and settled that law prevails. The matter before the court was in relation to Relinquishment of Succession Right when Heirs have separated themselves from Deceased for a long time. The Court had to decide whether Absence of the Will still attracts Hindu Succession Act when Heirs had distanced themselves from the life of Deceased for more than 35 years. The situation became more complicated since deceased considered someone else as her nominee.

In the above-mentioned case, the facts are as follows:

  • A woman was living separately from her Husband and Daughter from past 35 Years and died Intestate.
  • From 35 years, the deceased was living with her sister.
  • Deceased was a Central Government Employee and has selected her sister as her nominee.
  • A succession Certificate issued in favor of Husband and Daughter of Deceased.
  • Sister of Deceased appealed against the above order on the ground that Nomination marked her as the owner.
  • Court relying on settled position of Nomination not amounting to Will stated that in absence of Will irrespective of relationship between deceased and heirs, the property still delves into legal heirs as per Hindu Succession Act in case of Intestate Deaths.

The court in this matter settled the following points

  • Nomination does not itself amounts to a Will or marks nominee as an owner.
  • Irrespective of the relation between Parties, provisions of Hindu Succession Act prevails in absence of Will.

Conclusion

The court in its opinion stated that the prevalence of law since distance does not amounts to Breakage of relationship and can even be there because of various other reasons as Employment. Moreover Nomination in Official Records sometime is done as a token of affection and love rather than with the purpose of making someone as a legal heir.

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Evicting a tenant on the basis of personal necessity

Judgement against the tenant

The landlord can now seek eviction on the ground of bona fide requirement of tenanted premises for the purposes of the business requirement of the son, daughter or any other member of the family dependant on him or her.

The High Court has held in the case of  Bhupinder Singh Bawa v. Asha Devi  that there is no law which suggests that if a landlord requires the premises for running business of his/her young son who is an MBA graduate and is already engaged in some other business, he is acting malafidely and thus, no relief should be granted to him/her. The High court had also rejected the argument that the since the son is already a director in the family company, there is no bona fide need of the tenanted premises.

Court Said

With regard to plea that the landlord has alternative premises, the High Court had observed: “It is not law that a petition for bona fide necessity does not lie because the husband of the landlady, who is carrying on a business on-premises must stop that business for or a son who wants to open a new business, more so when the tenanted premises are more suitable being on the main road and in a valuable market.”

Thus it is perfectly open to the landlord to choose a more suitable premises for carrying on the business by her son and that the respondent cannot be dictated by the appellant as to from which shop her son should start the business from.

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When can a Consumer file a complaint?

Consumer can file a complaint

The time period for filing a complaint for a consumer from the date of violation of a right is 2 years. The law in this regard is laid down in Sec24-A of Consumer protection act of 1986

The Supreme Court however in this Landmark Judgement of National Insurance Company Ltd. Vs. Hindustan Safety Glass Works Ltd. has held that where a supplier is responsible for causing a delay in the settlement of the consumer’s claim, the consumer shall be entitled under law to file a complaint in the Consumer’s court even after the expiry of the period of two years.

 The Hon’ble Supreme Court, in this case, remarked that in a dispute concerning a consumer;

  • it is necessary for the courts to take a realistic view of the rights of the consumer principally since it is the consumer who is placed at a disadvantage in comparison to the supplier of services or goods.
  • It is to overcome this disadvantage that a law which is compassionate towards people in the form of the Consumer Protection Act, 1986 was passed by the Parliament.

Therefore, in the Judgement the Apex Court has upheld the spirit of the “Consumer Protection Act of 1986” under which the “protection of consumers” was the main objective and not let the technical provisions of limitation in the Act to be interpreted in the manner which puts consumer on the back foot and is to the disadvantage of a consumer, thereby depriving them of their rights.

The above Judgement of the Apex court comes as a major relief to the consumers whereby

  • The large corporations and companies will not be able to exploit the period of limitation to their advantage and the “Little man” will be able to assert his right without any inconvenience whatsoever.
  • Henceforth a Consumer can file a complaint even after two years (which is the limit according to the law) from the date on which his right was violated if the consumer can show that it was the service provider or the company that was responsible for the resulting delay.

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