The Supreme Court of India has held that the right to apply for the probate of a Will does not automatically commence on the date of the testator’s death. Delivering a landmark ruling, a bench of Justice Sanjay Karol and Justice Vipul M. Pancholi clarified that the right to seek probate is a continuous one, and the limitation period begins only when it becomes necessary to apply—typically triggered by a hostile action against the positions established under the Will. Setting aside the orders of the District Court of Deoghar and the High Court of Jharkhand, the apex court ruled that the issue of limitation, when deeply intertwined with facts and specific dates of knowledge, constitutes a triable issue that cannot be summarily decided at the threshold under Order VII Rule 11 of the Code of Civil Procedure (CPC).
Background of the Dispute
The case originates from a Will executed on April 15, 1995, by Shrilal Singhania, who passed away shortly after on June 7, 1995. A decade later, on August 31, 2005, Bhudeo Prasad Singh, acting as the executor of the Will, initiated a probate application in favour of the appellant, Sanjay Sharma alias Sanjay Bhardwaj.
The objectors, who are the respondents in this appeal, moved an application under Order VII Rule 11 of the CPC. They contended that the probate petition was heavily barred by limitation due to the ten-year gap between the testator’s death and the filing of the application. On July 31, 2012, the District Judge of Deoghar rejected the probate application under Sections 222 and 276 of the Indian Succession Act, 1925, accepting the objectors’ plea of limitation. This order was subsequently challenged before the High Court of Jharkhand, which dismissed the appeal on April 28, 2022, confirming the civil court’s view that the delay was unjustified.
Arguments Before the Court
The respondents maintained that the application was legally unsustainable due to an unexplained and fatal delay of ten years, asserting that the limitation period began immediately upon the testator’s death in 1995.
In contrast, the appellant argued that the right to apply for probate does not automatically accrue upon the death of the testator. Instead, the necessity to seek probate arose only when a hostile action was taken against the Will’s dispositions. This happened on August 8, 2005, when Laxmi Devi, the wife of the testator, executed a General Power of Attorney. Since the probate application was filed on August 31, 2005, shortly after this event, the appellant argued it was well within the limitation period.
The Court’s Analysis on Limitation
The Supreme Court examined the dual issues of when the limitation period for probate begins and whether a petition can be summarily rejected under Order VII Rule 11 CPC on limitation grounds.
On the first issue, the Court noted that the Indian Succession Act does not prescribe a specific limitation period for probate petitions. Consequently, the residuary provision under Article 137 of the Limitation Act, 1963, applies, prescribing a three-year limitation period starting from “when the right to apply accrues.”
The bench firmly rejected the lower courts’ reasoning that the right to apply necessarily starts on the date of death. It cited the Bombay High Court’s judgment in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani, which was approved by the Supreme Court in Kunvarjeet Singh Khandpur v. Kirandeep Kaur and Sameer Kapoor v. State. Highlighting the correct position of law, the Court observed:
“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;”
The bench further emphasized that:
“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;”
Applying this principle, the Court observed that the need to apply in this case arose on August 8, 2005, when the respondents took actions hostile to the Will. Therefore, the application filed on August 31, 2005, was within the limitation period.
Adjudication Under Order VII Rule 11 CPC
On the second issue, the Supreme Court questioned whether courts can summarily reject a probate petition or evaluate the merits and suspicious nature of a Will under Order VII Rule 11 CPC. The Court held that whether a Will is suspicious is a matter of evidence and cannot be determined in summary proceedings.
Referring to Salim D. Agboatwala v. Shamalji Oddhavji Thakkar, which drew upon P.V. Guru Raj Reddy v. P. Neeradha Reddy, the Court held:
“the rejection of plaint under Order 7 Rule 11 is a drastic power conferred on the court to terminate a civil action at the threshold. Therefore, the conditions precedent to the exercise of the power are stringent and it is especially so when rejection of plaint is sought on the ground of limitation. When a plaintiff claims that he gained knowledge of the essential facts giving rise to the cause of action only at a particular point of time, the same has to be accepted at the stage of considering the application under Order 7 Rule 11.”
The Court also referenced Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar, noting:
“the plea regarding the date on which the plaintiffs gained knowledge of the essential facts, is crucial for deciding the question whether the suit is barred by limitation or not. It becomes a triable issue and hence the suit cannot be thrown out at the threshold.”
Additionally, citing the ruling in P. Kumarakurubaran v. P. Narayanan delivered by Justice R. Mahadevan, the Court reiterated:
“Once the date of knowledge is specifically pleaded and forms the basis of the cause of action, the issue of limitation cannot be decided summarily. It becomes a mixed question of law and fact, which cannot be adjudicated at the threshold stage under Order VII Rule 11 CPC. Therefore, rejection of the plaint on the ground of limitation without permitting the parties to lead evidence, is legally unsustainable.”
The Final Decision
Concluding that both the District Court and the High Court had committed a plain error in law, the Supreme Court allowed the appeal. It ruled that the probate application was within the limitation period and that its summary dismissal was unsustainable.
The Court set aside the order of the District Judge, Deoghar, dated July 31, 2012, and the judgment of the High Court of Jharkhand, dated April 28, 2022. The matter has been restored to the concerned Civil Court to proceed in accordance with the law, with no orders as to costs.
Case Details
Case Title: Sanjay Sharma @ Sanjay Bhardwaj Versus Krishnadhan Khaware and Ors.
Case No.: Civil Appeal No. of 2026 (Arising out of Special Leave Petition (C) No. 13473 of 2022)
Bench: Justice Sanjay Karol, Justice Vipul M. Pancholi
Date: July 15, 2026
