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YUGEN REALTY, SURAT
Will or Testament – If a person makes any article or document specifying who gets his own property after the death of the testator and how it is to be managed, it is called a will or testament. The appointment of an heir or administrator according to law is called a will.
If a person has not prepared a will or testament during his lifetime, then the inheritance law applies to his property.
A will can be executed only after the death of the testator. Thus, a will is a legal document or article for distributing or managing his own immovable and movable properties after the death of a person according to the wishes of the testator.
It is generally believed that when a person makes a will and appoints a beneficiary in it and obtains a probate-administration order from the competent court, he becomes the owner-occupier of the property mentioned in the will.
But this is not the case. A probate-administration order does not establish ownership or title to the property; it is only an administration order delegating the power to administer the property mentioned in the will as specified in the will.
The right to apply for probate or administration orders under the Succession Act, 1955 is a continuing right. The “right to apply” within the meaning of section 137 of the Limitation Act will be a continuing right, and no time limit can be imposed on it.
Thus, as explained above, the principle that “the right to apply for probate/letters of administration being a continuing right, time limit does not apply” has been established by the Hon’ble Gujarat High Court in “Habibbhai Ishabhai Sandhi vs. Ibrahimbhai Ishabhai Sandhi”, First Appeal No. 1098/2019, by passing a final order dated 24/03/2023 (Land Laws Judgments, Volume-1, Issue-3, March-2024, Page No. 221).
The facts of this case in brief are as follows: The owner of the property in question had two marriages, out of which the appellants are the children born to the second wife, and the defendants are the children born to the first wife.
The registered will of the owner of the property in question was made in the year 1997, making the properties liable in favor of the appellants.
On the basis of this, the appellants applied to the Magistrate in the year 2006 to register the change in the title deeds, but upon objection raised by the defendant, the competent authority refused to certify it.
After the change was rejected at that time, the appellants filed an application before the Hon’ble Court for probate under Order-7 Rule-14 of the C.P.C. in the year 2016, and the said application was converted into Probate Suit No. 24/2017 as per Section-295 of the Indian Succession Act.
For this purpose, an application was filed before the Hon’ble Court by the defendant under Order-7 Rule-11 of the Code of Civil Procedure, 1908.
The claim application cum application was rejected by the Hon’ble Court. Aggrieved by the order, the appellant has filed this present appeal before the Hon’ble High Court.
The Hon’ble High Court, in the case of “Kunwarjit Singh Khandpur vs. Kirandeep Kaur”, 2008(8) S.C.C.K. 463, firstly addressed whether Article 137 of the Limitation Act was applicable in relation to the right to file an application for the grant of probate or letters of administration, and secondly, whether the application with which the Supreme Court was dealing was within the time limit.
On these questions, the Supreme Court in the said judgment stated that the decisive expression was “the right to file an application under Article 137”. It was further observed that, “The operative expression in the application (in the said article) is ‘right to apply’.
In light of what has been stated by this Court, Article 137 clearly applies to an application for the grant of letters of administration.
In such proceedings, as correctly observed by the High Court, the application seeks recognition from the court only for the performance of duty, because in view of the nature of the proceedings, it is a continuing right.”
It is well settled that the right to apply for probate or letters of administration under the Succession Act, 1955, is held to be a continuing right.
The “right to apply” within the meaning of Article 137 would be a continuing right. The judicial clarification was given that in such proceedings, an application for probate or letters of administration seeks recognition from the court only for the performance of duty. It was held that the intention of the law is that, by the nature of the proceedings, it is a continuing right.
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Disclaimer : This information has been collected through secondary research and Yugen Realty Newspaper is not responsible for any errors in the same.
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