Rakesh Kumar vs U. T. of J&K and others - In view of the aforesaid development, the requirement of obtaining the probate of a Will before claiming right under a Will is not mandated in law. Therefore, the action of the respondent No. 3 in refusing to consider the case of the petitioner for attestation of Mutation of Inheritance, on the basis of a Will in his favour, is not sustainable in law.

 HC Jammu (2026.009.02) in Rakesh Kumar vs U. T. of J&K and others [WP(C) No. 2700/2026] held that; 

• As per unamended Section 213 of the Indian Succession Act, 1925, was in operation prior to the amendment effected to the said Act in the year, 2025, no right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated  copy of the Will annexed.

• Vide Act No. 39 of 2025, the Indian Succession Act, 1925 stands amended and section 213 of the said Act has been omitted.

• In view of the aforesaid development, the requirement of obtaining the probate of a Will before claiming right under a Will is not mandated in law. Therefore, the action of the respondent No. 3 in refusing to consider the case of the petitioner for attestation of Mutation of Inheritance, on the basis of a Will in his favour, is not sustainable in law.

Excerpts of the Order; 

# 1. The petitioner, through the medium of instant petition, has challenged order dated 31.07.2026 passed by respondent No. 3, whereby application of the petitioner seeking attestation of Mutation of Inheritance in his favour on the basis of a Will, has been rejected on the ground that the same has not been probated.

# 2. Issue notice to the respondents. Ms. Nisha Kangotra, Advocate appearing vice Ms. Monika Kohli, Sr. AAG accepts notice on behalf of the respondents.

# 3. As per unamended Section 213 of the Indian Succession Act, 1925, was in operation prior to the amendment effected to the said Act in the year, 2025, no right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated  copy of the Will annexed. Vide Act No. 39 of 2025, the Indian Succession Act, 1925 stands amended and section 213 of the said Act has been omitted.

# 4. In view of the aforesaid development, the requirement of obtaining the probate of a Will before claiming right under a Will is not mandated in law. Therefore, the action of the respondent No. 3 in refusing to consider the case of the petitioner for attestation of Mutation of Inheritance, on the basis of a Will in his favour, is not sustainable in law.

# 5. Accordingly, the impugned order of rejection dated 31.07.2026 is set aside and respondent No. 3 is directed to reconsider the case of the petitioner for attestation of Mutation of Inheritance on the basis of the Will in accordance with law. Let the entire exercise shall be completed by respondent No. 3 within a period of one month from the date a copy of this order is made available in the office of Tehsildar Ghagwal, respondent No. 3, herein.

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Sanjay Sharma @ Sanjay Bhardwaj vs Krishnadhan Khaware & Ors. - It is, therefore, a continuous right that can be exercised at any time so long as the object of the Will survives. The right to apply would therefore accrue from the date that it becomes necessary to apply. This obviously need not be within three years from the death of the testator. In this case, then, the need to apply would commence from the date when the respondents took actions hostile to the position established by the Will,

  SCI (2026.07.15) in Sanjay Sharma @  Sanjay Bhardwaj vs Krishnadhan Khaware & Ors. [C.A.No..of 2026 @ Special Leave Petition (C) No.13473 of 2022] held that;

• It is, therefore, a continuous right that can be exercised at any time so long as the object of the Will survives. The right to apply would therefore accrue from the date that it becomes necessary to apply. This obviously need not be within three years from the death of the testator. In this case, then, the need to apply would commence from the date when the respondents took actions hostile to the position established by the Will,

• 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.

Excerpts of the Order; 

# 1. Leave Granted.

# 2. The application dated 31st August 2005 initiated by one Bhudeo Prasad Singh, for probate of a Will dated 15th April 1995 executed by one Shrilal Singhania, was rejected by the District Judge, Deoghar1 under Section 222 and 276 of the Indian Succession Act, 19252 by order dated 31st July 2012 as a consequence of an application having been made under Order VII Rule 11 of Code of Civil Procedure, 19083 by the objectors-respondents herein. The High Court in terms of MA No.153 of 2012 which was dismissed by judgment dated 28th April 2022, agreed with the findings of the Civil Court. Hence this appeal.

Heard learned senior counsel for the parties.

# 3. The limited issue which presents for consideration is the whether the application for probate is barred by the law of limitation. The answer to this question is fairly straight forward. The ISA does not provide for any particular time period within which application for probate, or revocation thereof can be filed before the concerned Court. In these circumstances, the residuary provision of the Limitation Act, 19634 i.e., Article 137 would be the relevant provision. It reads as under:

	Description of suit	Period of limitation	Time from which period begins to run
137	Any other application for which no period of limitation is provided elsewhere in this Division.	Three years	When right to apply accrues

# 4. The primary ground that has been taken by the Courts below is that the application for probate was made in 2005 when the testator passed away a decade prior to 7th June 1995. This delay, in their considered view is unexplained and unjustified. At the outset we may state that we are unable to agree with such a view.

# 5. The probate of a Will has three -fold purposes- 

• (a) It is a judicial stamp of approval on the genuineness of the Will;

• (b) It acknowledges the appointment of an executor of the Will; 

• (c) It grants the executor to act for the purposes of the Will. 

Keeping this in view, the specific view that the period of limitation for probate commences from the death of the testator has been rejected. The Bombay High Court in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani,5 which has been quoted with approval by this Court in Kunvarjeet Singh Khandpur v. Kirandeep Kaur6, and Sameer Kapoor v. State7, except on one point held as under:

• “15. Similarly reference was made to a decision of the Bombay High Court in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani [AIR 1983 Bom 268] . Para 16 reads as follows : (AIR p. 270) 

• “16. Rejecting Mr Dalpatrai'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 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 longer operates.” 

• Conclusion (b) is not correct while Conclusion (c) is the correct position of law.”  

In both judgments of this Court, it has been stated that point (b) is incorrect while (c) is the correct position of law.

# 6. It is, therefore, a continuous right that can be exercised at any time so long as the object of the Will survives. The right to apply would therefore accrue from the date that it becomes necessary to apply. This obviously need not be within three years from the death of the testator. In this case, then, the need to apply would commence from the date when the respondents took actions hostile to the position established by the Will, that is, the execution of a General Power of Attorney by Laxmi Devi, wife of the testator on 8th August 2005. In that view of the matter, the application for probate of Will made by the executor Mr. Bhudeo Prasad Singh, in favour of the appellants Sanjay Sharma @Sanjay Bhardwaj is held to be within limitation since the same was filed 31st August 2005.

# 7. A second issue arises for consideration. We ask a question as to whether under Order VII Rule 11 CPC on an application filed by the objector, it was open for the High Court to return findings that are on the merits of the Will itself. We think not. Whether or not a particular Will is suspicious comments directly upon the sanctity of the Will itself which was not open for the Court to adjudicate in the proceedings, summary in nature without, obviously having appreciated evidence in that regard. The scope of adjudication of an application under Order VII Rule 11(d) is well established.

It has been held in Salim D. Agboatwala v. Shamalji Oddhavji Thakkar, as follows:8 

• “11. As observed by this Court in P.V. Guru Raj Reddy v. P. Neeradha Reddy [P.V. Guru Raj Reddy v. P. Neeradha Reddy, (2015) 8 SCC 331 : (2015) 4 SCC (Civ) 100] , 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.

• 12. Again as pointed out by a three-Judge Bench of this Court in Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar [Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar, (2018) 6 SCC 422 : (2018) 3 SCC (Civ) 524] , 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.” (emphasis supplied) This Court speaking through R. Mahadevan J. P. Kumarakurubaran v. P. Narayanan9, held that once limitation becomes a question of law and fact, it cannot be dismissed summarily under Order VII Rule 11 proceedings:

• “12.1. … 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.”

# 8. On both these counts qua Order VII Rule 11 as also the question of limitation itself, the judgments and orders of the Courts below have to be set aside. The order dated 31st July 2012 passed by the District, Deoghar, and the judgment dated 28th April 2022 passed by the High Court of Jharkhand are set aside. As having plainly erred in law, the appeal is allowed.

The matter stands restored to the concerned Civil Court to proceed in accordance with law.

Pending application(s), if any, stand disposed of. No costs.

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Dhiraj Dutta vs Anirban Sen - The ISA does not provide any limitation for grant of probate or to move an application for the revocation thereof and as such recourse must be made to Article 137 of the Limitation Act 1963.

  SCI (2026.05.29) in Dhiraj Dutta vs Anirban Sen [2026 INSC 602, C.A.No…/2026 @ SLP©No.3371 of 2026] held that;

• The ISA does not provide any limitation for grant of probate or to move an application for the revocation thereof and as such recourse must be made to Article 137 of the Limitation Act 1963. 

Excerpts of the Order; 

Leave Granted.

# 2. Smt. Gouriprova Sen, inherited the properties of her husband Mr. Amulya Chandra Sen, by virtue of being his sole legal heir. Certain portion of these properties stood gifted to the appellant by a deed. Her Will was dated 9th July 1989 whereby the appellant, her nephew was made the sole executor and beneficiary. She died shortly thereafter on 8th October 1989. The transfer of properties in his name by virtue of this will is the genesis of the present dispute.

# 3. The appellant’s application for probate of the said Will was granted vide order dated 28th September 1995. Further proceedings for necessary changes in the Revenue Record were initiated somewhere in 2010-11. As per the appellant, notices were served to the predecessor in interest of the respondent in these proceedings. As per the respondents, who are nephews-in- law of the testatrix and the only surviving members of the family of the testatrix’s husband, however, they found out somewhere in 2019 consequent to which they filed suit for declaration and injunction in which the appellant has undisputedly, filed his written statement. This suit is apparently pending before the jurisdictional Court. On 5th July 2022 the respondents herein filed an application under Section 263 of the Indian Succession Act 1925 seeking revocation of the probate granted on 28th September 1995.

# 4. The learned single Judge in terms of order dated 16th June 2023 dismissed the application holding the same to be barred under the provisions of the Limitation Act 1963. On appeal, the learned Division Bench, taking a different view, allowed the appeal and as such, the matter stands before us. We are therefore, required to decide whether the application for revocation of the probate filed in 2022 is within limitation, or outside it, given the differing view of the Courts below.

# 5. The provision concerned with the revocation of probate under the ISA reads thus:

• “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 by concealing from the Court something material to the case; or

• (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 wilfully 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 taken administration to the estate of B as if he had 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.” (emphasis supplied) 

The ISA does not provide any limitation for grant of probate or to move an application for the revocation thereof and as such recourse must be made to Article 137 of the Limitation Act 1963. The same is as follows:

PART II—OTHER APPLICATION

137. Any other application for which no period of limitation is provided elsewhere in this Division.

Three years.

When the  right to apply accrues

# 6. In light of these provisions, we are required to undertake a determination on facts. To restate for the purposes of ease, it is the appellant’s case that the limitation would apply from 2013 when notice was served to the respondents in the mutation proceedings and on the contrary the respondents contend that their application for revocation of probate is within limitation since they acquired knowledge somewhere in 2019 only.

# 7. The question of limitation on revocation of probate was authoritatively dealt with by a judgment of this court in Lynette Fernandes v. Gertie Mathias8 and Ramesh Nivrutti Bhagwat v. Surendra Manohar Parakhe.

# 8. As to when “the right to apply” would accrue, that depends on the date from which the party making the application had knowledge. In this case, that would be the respondents. In 2013, when notice was served to them, that was regarding mutation proceedings initiated by the present appellant. In the revocation of probate application filed in 2022, it is submitted by the Respondents that notice was indeed served upon them with reference to the mutation proceedings but in effect, they chose to ignore the same, since they already enjoyed entries in their favour. The relevant extract of the application is as under:

• “9. In July, 2013, a copy of the original application being O.A. No.1417 of 2012 was served upon the said heirs of Gouriprova Sen, since deceased. But being heirs of said Gouriprova Sen, the names of Aswini and Shankar have been mutated in respect of the proprieties of said Gouriprova Sen since deceased. As the mutation has been made in favour of Aswini and Shankar, they did not contest the said original application. The Learned West Bengal Land and Land Reforms Tribunal dismissed the said original application. The Learned West Bengal Land and Land Reforms Tribunal dismissed the said original application. Against the said order Learned Tribunal, Dhiraj Dutta, the alleged legatee preferred writ petition being WPLRT No.103 of 2019 before the Hon’ble High Court Calcutta which was also dismissed from default.”

# 9. The question now is whether these proceedings at the instance of the appellant amounts to constructive notice to the respondents regarding the grant of probate in his favour. From perusal of the judgments of this Court [See: Rajasthan Housing Board v. New Pink City Nirman Sahkari Samiti Ltd.10; Dharmrao Sharanappa Shabadi v. Syeda Arifa Parveen11; Ahmedabad Municipal Corpn. v. Haji Abdulgafur Haji Hussenbhai12], following facets can be deduced regarding constructive notice:

• (a) It is a deeming fiction within law that originated from equity and is distinguishable from actual notice as it is an inferral by law;

• (b) It hinges on either wilful abstention or gross negligence. To understand what may constitute either of these two, see Haji Abdulgafur Haji Hussenbhai (supra).

• (c) The question of whether or not something qualifies as constructive notice is either a question of fact or a mixed question of law and fact dependant on the facts and circumstances of each case;

• (d) The standard to be applied in determining wilful abstention or gross negligence is that of a reasonably prudent man as applied in Indian conditions;

# 10. It is admitted by the respondents herein that notice was served but it is also a matter of record that they chose not to do anything. This cannot be termed to be the conduct of a reasonably prudent man. If a Court of law has sent someone a notice, the least that can be accepted is for them to make attempts to find out why the same may have been sent to them and what they would be required to do in regard thereto. This is more so the case when the respondents already had mutation entries in their favour and yet the notice received by them were in connection with mutation proceedings initiated by a third party. After all, if the mutation proceeding by the appellant had succeeded there would be competing rights of equal stature regarding the same properties since it is well established that mutation proceedings do not confer any title. When the enjoyment of a particular property rests on such flimsy grounds, it can only be expected that they would attempt to go to the root of the matter and find out why the notice came to be issued in the first case. This was not done. It was entirely possible that the person who had initiated the subsequent mutation proceedings had a better claim over the property than the respondents. Yet no action was taken. We also notice that in the application for revocation of probate, when it comes to the time period between 2013 and 2019 when the title suit was filed, all that has been said is that the appellant attempted to threaten them and dispossess them of their right, title and interest. How the right and title came to rest with them, they are silent. How is it that the appellant threatened them nothing but more silence.

# 11. In these facts and circumstances, the notice in mutation proceedings would be deemed constructive notice. Attempts ought to have been made to figure out on what basis the mutation proceedings came to be filed, and the limitation as given under Article 137 would have applied from the day they would have found out that the said proceedings rested on probate of Will granted to the appellant. At any rate, the same would not have been 2019 to fall within the prescribed limitation in 2022. The respondents’ application for revocation of probate would hopelessly be time barred. Consequently, the judgment of the learned Division Bench had to be set aside and that of the learned Single Judge is ordered to be restored. All necessary consequences will follow.

Appeal is allowed and applications pending shall be disposed of. Costs will be made easy.

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