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.

Recommended reading: Landmark Judgement by consumer court against property builder

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.

Recommended reading: Adverse Possession

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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Adverse Possession

Judgement on Adverse Possession

In a recent decision on 7th August, 2019, the Honourable Supreme court of India has passed a judgement wherein it has been held that adverse possession has roots in a principle that awards ownership of a land to a person who makes the best or highest use of land. It means that if a person who is in possession of the land for 12 or more years and maintains the property and improves the property has a better claim over it than the owner who neither visits the property nor cares for the property. By way of this judgement, any person who is taking care of the property for more than 12 years without any interference can claim a title/ownership over the property through the court. It is therefore advisable that any NRI who is having immovable property in India and that property has been entrusted to someone as a caretaker without any agreement or existing documents, NRI cannot claim ownership right over the property after the expiry of 12 years, if that person is enjoying uninterrupted interference over that property.

To ensure that the property of NRIs is not claimed by any caretaker who has been entrusted by them, NRI should keep in mind the following instructions:

  • Ensure that a lease and licence agreement is prepared with the person who is appointed as a caretaker.
  • Ensure that a proper rent agreement is prepared if the property has been given on rent and it should be updated from time to time.
  • Ensure that even if any relative/friend is entrusted to take care of property, there should be a proper written agreement.
  • Ensure that the property tax and maintenance charges are paid by NRIs directly at regular intervals.
  • Ensure that utility bills like electricity and water bills should be in the name of the owner of the property.

We hope that this article will be helpful for the NRIs to safeguard their property in India in view of the judgement of the Honourable Supreme court.

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Parents Can Evict Abusive Children from Home: Delhi High Court (Judgement)

Parents Can Evict Abusive Children from Home Delhi High Court Judgement

We have had a rich culture in India since ancient times where parents are looked after by their children when they grow old. Our moral values teach us that parents need our love, care, respect and protection in their old age not only because they are our parents who looked after us in our tender age, but because they need us the most at that age.

With the growing complexities of working culture and modern social setup where joint families are giving way to nuclear families, the need was felt for State to interfere and make provisions for providing physical and financial support to the elderly by the children. Thus the Maintenance and Welfare of Parents & Senior Citizens Act, 2007 was enacted. This Act aims to provide a speedy, inexpensive and simple procedure to claim maintenance. Under the 2007 Act, it has been left to the State Governments to frame rules for the protection of senior citizens.

In the Delhi High Court Judgement in a case titled Sunny Paul vs State of NCT of Delhi, it has been made clear that under the scheme of the 2007 Act, the main objective is to provide social justice to the elderly.

A.    EVICTION CAN BE CLAIMED from abusive children

  • With or without claiming maintenance
  • From any property – ancestral, self-acquired or rented accommodation. Property can be tangible/intangible, moveable or immovable. The property includes any right or interest in the immovable property and not just ownership.
  • Even if children are not in line to inherit the property

B.    MAINTENANCE CAN BE CLAIMED

  • It is now obligatory for the children/grandchildren to provide maintenance in the form of monthly allowance to the parents if they are unable to maintain themselves out of their own earnings.

C.    OBLIGATORY TO PROVIDE BASIC AMENITIES

  • U/ s 23 of the Act, transfer of property from senior citizen will be void if the transfer was on the condition that the transferee shall maintain the transferor and provide for basic amenities and physical needs, but he fails to do so. Transfer can be actual transfer, stay or possession. The transferee can be legal heirs or children.

D.    OTHER OBSERVATIONS

  • Everyone including the senior citizens has the right to live peacefully
  • The primary objective of the Act is to protect the life and property of the Senior Citizens
  • The Court also emphasised that the Act is social legislation and needs a liberal interpretation to respond to the urgent social needs of a welfare State. The Legislation intends to provide an effective remedy to the parents to save them from being traumatised.

E.    POWER OF MAINTENANCE TRIBUNAL

  • The Court upheld the power of the Maintenance Tribunal to order the eviction of abusive children under the Act and to issue directions to give effect to the same.
  • Earlier also in another case of Rajeev Bahl, Delhi High Court has stated that even if the property is HUF and children are coparceners, they can be evicted if they are harassing/ill-treating the parents.

The children cannot continue to misbehave with elderly parents and enjoy their property also. The moral obligation to maintain the parents has now come under the purview of the State, and the same is being enforced in the true spirit and light by various Courts. If the children are not fulfilling their obligation, they can be forced to do the same, and if they are maltreating their parents, they can be evicted from the property.

Section 377 verdict- Victory long-awaited

Section 377 verdict- Victory long-awaited

The world is changing for sure – Law is a reflection of what happens in Society and what is needed too. Therefore it will always change when society is transforming. One of the most striking examples of this has been the abolishing of major aspects of Section 377 of India Penal Code, a Colonial period law, which criminalized homosexuality besides other unnatural acts of carnal intercourse.

The change – Morality is not what the majority thinks

Post the landmark judgement on September 6, 2018, Lesbians, Gays, Bisexuals and Transgender (LGBT), are recognised as people with a distinct and separate identity, who deserve all rights guaranteed under the Constitution as available to any other citizen. They have a right to live with dignity which was to a certain extent barred by Section 377 which brought these under a microscopic criticism. They cannot be discriminated against for their sexual orientation. There is nothing unnatural about their attraction towards the same gender. Their right to privacy cannot be denied to them just because they are in the minority.


Also Read: Rights of Transgender in India


What was the Section 377 of IPC?

Section 377 of Indian Penal Code provides for punishment and fine, for sexual acts against the “order of nature.” As per the Section, unnatural acts like buggery, sodomy and bestiality are punishable. Consensual same-sex relation is also a criminal offence.

“Order of nature” is consensual sexual acts between man and woman only.

The constitutional validity of Section 377 and the Recent Verdict

The story started with the initiative of the NAZ Foundation, an NGO, in challenging the Constitutional validity of Section 377. It stated that the Section 377 so far as it criminalises consensual sexual acts between adults in private, violates the articles of Indian Constitution:

  • Article 14 (equality)
  • Article 19(1)(d) (freedom of speech, assembly, association and movement)
  • Article 21 (right to life and personal liberty)

It was argued that the section had been misused against homosexuals. It is unreasonable and arbitrary to criminalise non-procreative sexual relations. The term “unnatural” act has no nexus with procreative or non-procreative sexual acts.

Earlier the Hon’ble Supreme Court of India had turned down the argument of NAZ foundation and upheld the Constitutional validity of Section 377 stating that it does not criminalise particular orientation or identity. It only identifies certain acts which constitute an offence under Section 377.

  • In 2017, in Puttuswamy’s case, it was affirmed that the right to privacy is a fundamental right and it includes one’s sexual orientation. This decision opened the gates for the recent verdict.
  • The recent verdict of SC, reflects the sentiments of many people in India who now consider homosexuality as natural. SC has read down Section 377 so that consensual sexual relation between homosexuals in private is not a crime.

The ruling has brought cheers to the LGBT community. They have long been deprived of their right to privacy and the right to equality. Progressive International Community has also hailed the verdict as it has provided what everyone expected out of world’s largest democracy.

Section 377 – partially struck down

Section 377 has not been struck down as a whole. Consensual sexual relations among adult homosexuals have been taken out of the purview of the term “against the order of nature”.

Other acts covered under the section remain an offence:

  • Unnatural sex with animals
  • Unnatural sex with children
  • Sex among homosexuals without the consent of any of them

Read: Other Judgement


New Hope

The judgment has given a new hope to LGBT community that their other rights will also fall in place now. They will be respected and loved the way they are irrespective of their sexual orientation. They will be treated at par. No prejudices, no discrimination and no ostracism for being homosexual. More than just the legal victory or change that this decision symbolizes, it is the sentimental achievement that is worth mentioning. This surely will go down in the history of Indian Law as a milestone.

Daughters have equal shares in Ancestral Property,even though they were born before enactment of the Hindu Succession Act – A Judgement by Supreme Court

JudgemePrakash-v-Phulavati-2016-2-SCC-36

The Supreme Court has ruled that daughters born before the enactment of the Hindu Succession Act of 1956 are entitled to equal shares as the son in ancestral property. The verdict was issued in an appeal filed by daughters who challenged a decree in a partition suit that excluded them from the partition.

The Partition suit was filed in 2002 by the grandson of the deceased propositus of a joint family. The court found that daughters were not entitled to share in the property because they were born before 1956, the year the Hindu Succession Act was enacted. In the judgement, the Trial Court also denied them the benefits of the 2005 amendment, which gave daughters the same coparcenary status as sons. The High Court upheld the decree of Trial court.

The Supreme Court ruled that the courts below had made a mistake in the judgement that daughters were not empowered to partition because they were born before 1956. Under Section 6 of the Law, when a coparcener that left behind any female sibling designated in Class I of Schedule to the Law (which also includes a daughter), his undivided interest in Mitakshara Coparcenary property would not devolve upon the surviving coparcener by survivorship but upon his heirs by intestate succession. Therefore, the deceased coparcener interest would devolve by intestate succession on his heirs, including his daughters.

The Court has also held in judgement in favor of the daughters that they were entitled to the benefit of 2005 amendment as well, and that basis also they were designated to shares. It was settled in Prakash v. Phulavati (2016) 2 SCC 36 that right under the amendment area available to the daughters living on the day of the act, regardless of when they were born. In the present case, the bench comprising Justice A.K Sikri and Justice Ashok Bhushan further explained this and stated that the amendment stated that a daughter ‘shall by birth’ would become a coparcener in her own right in an equal way as son. Therefore, the daughter will receive the coparcenary right by virtue of amendment, ‘since birth’. It was observed as follows: –

Section 6, as amended, provides that on and from the initiation of the amendment Act, 2005 the daughter of the coparcener shall by birth become the coparcener in her rights in the same way as the son. It is obvious that the status is given to the sons under the old section and the old Hindu law was to treat them as coparceners since birth. The amended provision now also legally recognizes the rights of coparceners of daughters since birth. The section uses the terms in the same way as the son. It should, therefore, be evident that both the sons and the daughters of a coparcener have been given the right of becoming coparceners from birth. It is the fact of birth in a coparcenary that creates the coparcenary, and therefore the daughters and sons of a coparcener become coparceners by birth. The devolution of coparcenary property is the later stage and an outcome of the death of a coparcener. The first stage of a coparcenary is certainly its creation, as explained above, and as is well recognized.

The fact that the lawsuit was filed in 2002 was also considered irrelevant. The Court stated in the judgement that so far as partition suits are concerned, the partition becomes final until only on the passing of final decree. The decree was issued in 2007. Here the powers of the daughters were established in 2005, and since the Trial Court ought to have taken into account that aspect when adopting the decree in 2007.

The Court also noted and mentioned in the judgement that the 2005 amendment was brought in on the touchstone of equality, thus seeking to remove the perceived disability and prejudice faced by a daughter.

The major changes brought forward about in the Hindu Succession Act of 1956 by changing it in 2005, are perhaps a recognition of Roscoe Pound immortal words, which appear in his famous “The Ideal Element in Law” contracts that “the law must be stable and yet it cannot stand still. Hence all thinking about the law has fought to reconcile the conflicting demands of the need for stability and the need of change.” – the Bench observed.

Therefore, the judgement is in the favor of the daughters and says that shares will devolve on them as well.

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