Case Background
The dispute arose within one family of East Champaran over the property of late Kashi Nath Sinha. According to the appellant, Kashi Nath Sinha executed a registered will on 26.06.2000 in favour of his three sons, including the appellant, in respect of his maternal property described in Schedule 1 of the probate petition.
The testator, Kashi Nath Sinha, died on 30.06.2000. He left behind three sons, his wife, one daughter, and the husband and children of a predeceased daughter. These heirs were made opposite parties (respondents) in the probate proceedings.
The will was stated to have been typed by Mohan Prasad at the testator’s instruction. The testator allegedly signed the will in his own hand in the presence of attesting witnesses, who also signed in his presence. He then personally presented the document before the Registration Authority and admitted its execution. The will was asserted to be his last will.
The testator was a resident of village Madhopur Tanasariya (also spelt Madhopur Tansaraia) under Turkauliya Police Station, District East Champaran, which placed the case within the jurisdiction of the Subordinate Judge 1st, Motihari.
On 28.09.2012, about 12 years after the testator’s death, the appellant and other petitioners filed Probate Case No. 40 of 2012 before the court of Subordinate Judge 1st, Motihari, seeking probate/letters of administration of the registered will.
In that probate case, the petitioners examined four witnesses, namely AW-1 Jai Rai, AW-2 Manoj Kumar Sinha (the appellant), AW-3 Mohan Prasad (who typed the will), and AW-4 Urmila Sinha. The original will was exhibited as Ext.1 and the original death certificate of the testator as Ext.2.
The respondents, who were the other family members and heirs, entered appearance and filed a written statement. Crucially, they admitted the execution of the will in favour of the present appellants. They also admitted that the property covered by the will belonged to the deceased testator and stated that they had no objection to probate or letters of administration being granted in favour of the appellants.
Despite this, by judgment dated 16.12.2017, the Subordinate Judge 1st, Motihari dismissed Probate Case No. 40 of 2012 on the ground of limitation, treating the application as barred by time. Aggrieved, the appellant filed Miscellaneous Appeal No. 199 of 2018 before the Patna High Court under Section 299 of the Indian Succession Act, 1925.
What the Court Examined and Decided
Hon’ble Mr. Justice Ramesh Chand Malviya of the Patna High Court heard the appeal. The Court considered whether the trial court was right in dismissing the probate case as barred by limitation, despite the will and its execution being proved and despite there being no contest from the legal heirs.
Counsel for the appellant argued that the impugned judgment was unsustainable in law and on facts. It was submitted that the trial court had failed to apply its judicial mind properly and had dismissed the case on an erroneous understanding of limitation.
The appellant’s counsel emphasized that after the filing of the probate case, the respondents had appeared and filed their written statement, explicitly admitting:
(a) execution of the will in favour of the appellants;
(b) that the property covered by the will belonged to the deceased testator; and
(c) that they had no objection to grant of probate or letters of administration in favour of the appellants.
The appellant explained that, after passage of time, it became necessary to get the will probated to avoid future disputes and to give full effect to the testator’s last wishes. Relying on legal advice that there was no specific limitation period for filing a probate application, they approached the court on 28.09.2012.
It was further submitted that the witnesses to the will had been examined and they supported and proved the execution of the will. The original will and the death certificate of the testator were produced and marked as exhibits 1 and 2. No one challenged the execution of the will, nor did anyone raise any objection that the petition was belated.
The appellant’s counsel argued that since no issue was framed on limitation and no objection was raised by any near relative on that ground or on the title of the testator, the trial court erred in dismissing the probate petition solely on limitation. The trial court, while itself presuming the will to be genuine and holding that the petitioners had proved its execution, still rejected the case relying on a decision reported in 2017(1) PLJR 489.
The appellant distinguished that precedent by pointing out that in the reported case there were objections by close relatives, whereas here there was no such contest. He also relied upon the Supreme Court judgment reported in (2008) 8 SCC 463, where the Court held that “once execution and attestation are proved suspicion of delay no longer operates.”
The Patna High Court then closely examined the law on limitation in probate and letters of administration matters. The Court referred to the Supreme Court judgment in Kunvarjeet Singh Khandpur vs. Kirandeep Kaur and Others, reported in (2008) 8 SCC 463. In that case, the Supreme Court had laid down important principles about the application of the Limitation Act to applications for probate, letters of administration, or succession certificates.
Quoting from that decision, the Patna High Court summarised the conclusions approved by the Supreme Court, including:
(a) Under the Limitation Act, no specific period is prescribed within which an application for probate, letters of administration, or succession certificate must be made.
(b) It is unwarranted to assume that, under Article 137 of the Limitation Act, the right to apply necessarily accrues on the date of death of the deceased.
(c) An application for probate or letters of administration is essentially for the court’s permission to perform a legal duty created by a will or to obtain recognition as a testamentary trustee. This is a continuous right which can be exercised any time after the death, as long as the right survives and the object of the trust exists or any part of it remains to be executed.
(d) The right to apply accrues when it becomes necessary to apply, which may not be within three years from the date of death.
(e) Delay beyond three years after the deceased’s death may arouse suspicion and, the greater the delay, the greater the suspicion; but
(f) Such delay must be explained, although it cannot be equated with an absolute bar of limitation; and
(g) Once execution and attestation are proved, the suspicion arising from delay no longer operates.
The Patna High Court also noted that the conclusion “b” mentioned in the quoted passage (namely, the assumption that the right to apply must accrue on the date of death) was held to be incorrect, while conclusion “c” (treating the right as continuous) was affirmed as the correct position of law.
Further, the Court referred to the judgment of the Gujarat High Court in Habibbhai Ishabhai Sandhi vs. Ibrahimbhai Ishabhai Sandhi dated 24.03.2023. In that decision, the Gujarat High Court, relying on Kunvarjeet Singh Khandpur and on its own earlier decision in Bhupendrabhai Samjubhai v. Diwaliben [(2013) 3 GLR 2177], reiterated that:
– the right to apply for probate or letters of administration is a continuing right;
– delay, even of 15 years, would not by itself vitiate the application;
– Article 137 applies, but “right to apply” in such proceedings is continuous; and
– the application essentially seeks recognition from the court to perform a duty flowing from the will.
Applying these principles to the facts of the case, the Patna High Court held that treating the appellant’s application for probate as barred by limitation was unsustainable. It was “not correct to view the application to be barred by Article 137 of the Limitation Act.”
The Court emphasized the nature of probate proceedings and the continuous nature of the cause. Here, the will was registered, its execution was proved by attesting witnesses, the death certificate was produced, and, importantly, no near relative of the deceased had raised any objection. On the contrary, they had admitted the will and expressed no objection to grant of probate or letters of administration.
In these circumstances, the suspicion that might arise solely from delay stood overcome once execution and attestation were proved and the heirs did not contest. Thus, the appellant was held entitled to letters of administration in respect of the registered will dated 26.06.2000, relating to the property detailed in Schedule 1 of the probate petition.
Consequently, the High Court allowed the appeal. It set aside the judgment dated 16.12.2017 passed by the Subordinate Judge 1st, Motihari, in Probate Case No. 40 of 2012. The Court directed that the appellant is entitled to grant of letters of administration of the registered will dated 26.06.2000 executed by late Kashi Nath Sinha.
The High Court also directed its office to send back the trial court records and proceedings along with a copy of the High Court’s judgment to the court below for necessary compliance.
Why This Judgment Matters
This judgment of the Patna High Court is significant for families dealing with wills that were never promptly probated. Many people in Bihar and across India assume that if they do not apply for probate soon after someone’s death, their right is lost forever. This decision clarifies that this assumption is legally incorrect.
The Court has reinforced that an application for probate or letters of administration is a continuing right. It is not automatically barred because several years have passed since the death. Delay may raise questions, but it does not create an absolute legal bar. When the will is proved and the heirs do not object, the court should not dismiss the case only on the ground of limitation.
For ordinary citizens, this means that if a valid will exists, and it can be properly proved, they can still approach the court for probate or letters of administration, even after many years, especially where the need for formal recognition arises later, for example, to avoid future disputes or to deal with property records.
For lawyers and trial courts in Bihar, the judgment is a reminder that Article 137 of the Limitation Act must be applied in line with the Supreme Court’s ruling in Kunvarjeet Singh Khandpur. It cautions against treating every delayed probate petition as time-barred, particularly when there is no contest among heirs and the will is genuinely proved.
Legal Issues and Answers
- Issue: Whether the probate petition filed in 2012, in respect of a will executed and followed by death in 2000, was barred by limitation under Article 137 of the Limitation Act.
Answer: No. The Patna High Court held that the right to apply for probate or letters of administration is a continuing right. The application could not be dismissed as time-barred merely due to delay, especially after the will’s execution and attestation were proved and no heir objected. - Issue: Whether the appellant was entitled to letters of administration of the registered will of late Kashi Nath Sinha.
Answer: Yes. The High Court held that, in view of the proved execution of the will, the production of the death certificate, and the absence of any objection by near relatives, the appellant was entitled to grant of letters of administration of the registered will dated 26.06.2000.
Cases Cited by the Court
- Kunvarjeet Singh Khandpur vs. Kirandeep Kaur and Others, (2008) 8 SCC 463 – Supreme Court decision laying down that the right to apply for probate/letters of administration is a continuing right and that delay alone does not bar such applications.
- Habibbhai Ishabhai Sandhi vs. Ibrahimbhai Ishabhai Sandhi, judgment dated 24.03.2023 – Gujarat High Court decision affirming, with reference to Kunvarjeet Singh Khandpur and Bhupendrabhai Samjubhai v. Diwaliben [(2013) 3 GLR 2177], that delay does not bar applications for probate or letters of administration and that the right to apply is continuing.
Case Details
Case Number: Miscellaneous Appeal No. 199 of 2018
Case Title: Manoj Kumar Sinha vs. Mankesh Kumar Sinh & Others
Coram: Hon’ble Mr. Justice Ramesh Chand Malviya
Citation: 2025 (3) PLJR 828
Advocates:
For the appellant: Mr. Arvind Kumar Singh, Advocate; Mr. Dilip Kumar Tondon, Advocate; Mr. Rohit Ranjan, Advocate.
For the respondents: Mr. Shakti Suman Kumar, Advocate.
Nature of the case: Miscellaneous appeal under Section 299 of the Indian Succession Act, 1925, against an order dismissing a probate case (Probate Case No. 40 of 2012) as barred by limitation.
Impugned Order: Judgment dated 16.12.2017 passed by Subordinate Judge 1st, Motihari, in Probate Case No. 40 of 2012.
Result in Appeal: Appeal allowed; impugned judgment set aside; appellant held entitled to grant of letters of administration of the registered will dated 26.06.2000 executed by late Kashi Nath Sinha.
Link to Judgment: Click here to read the full judgment of the Patna High Court
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