How to ascertain limitation for filing application for revocation of probate?

The decision in Lynette Fernandes v. Gertie Mathias, (2018)

1 SCC 271, dealt with the precise issue of the period of limitation

applicable for an application for cancellation of a probate or

letters of administration. This court held as follows:

“One must keep in mind that the grant of probate by

a Competent Court operates as a judgment in rem

and once the probate to the Will is granted, then

such probate is good not only in respect of the

parties to the proceedings, but against the world. If

the probate is granted, the same operates from the

date of the grant of the probate for the purpose of

limitation Under Article 137 of the Limitation Act in

proceedings for revocation of probate. In this matter,

as mentioned supra, the Appellant was a minor at

the time of grant of probate. She attained majority on

09.09.1965. She got married on 27.10.1965. In our

considered opinion, three years limitation as

prescribed Under Article 137 runs from the date of

the Appellant attaining the age of majority i.e. three

years from 09.09.1965. The Appellant did not choose

to initiate any proceedings till the year 25.01.1996

i.e., a good 31 years after she attained majority. No

explanation worthy of acceptance has been offered

by the Appellant to show as to why she did not

approach the Court of law within the period of

limitation. At the cost of repetition, we observe that

the Appellant failed to produce any evidence to prove

that the Will was a result of fraud or undue

influence. The same Will has remained unchallenged

until the date of filing of application for

revocation. No acceptable explanation is offered for

such a huge delay of 31 years in approaching the

Court for cancellation or revocation of grant of

probate.”

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1399 OF 2010

RAMESH NIVRUTTI BHAGWAT  VS. DR. SURENDRA MANOHAR PARAKHE 

S. RAVINDRA BHAT, J.

Dated: October 04, 2019.
Citation: 2020(2) MHLJ 28

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Whether oral prayer for condonation of delay is maintainable?

It is well settled that an oral prayer for condonation of
delay can also be entertained provided ground therefor is made out
in the petition and accordingly I do not find any merit in the
submission that in absence of any formal prayer, the oral prayer
for condonation of delay cannot be entertained. However, as
rightly pointed out on behalf of the Executor, the court has to be
satisfied that there is sufficient cause for condoning such delay
and the court has to be satisfied with the explanations offered in

the petition. In an application for restoration, the applicant is
required to furnish reasons which have to be sufficient to sustain
a plea that the applicant is entitled to restoration of the matter
and he needs to offer an explanation for the period of delay.

IN THE HIGH COURT AT CALCUTTA
Testamentary & Intestate Jurisdiction
GA NO. 3070 OF 2018
PLA NO. 123 OF 2013

IN THE GOODS OF:
KRISHNA CHANDRA SENGUPTA (DECEASED)

BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 15th November 2018.
Citation: AIR 2019(NOC) 66 Cal

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Whether third party can file application for review of order of grant of probate?

The next question is about the maintainability of an application for review at the instance of a person who was not party to the appeal. The decision relied upon by Mr. Basu opines that a person aggrieved by an order can only file an application for review and if he is not a party to the proceedings, he cannot be aggrieved. In our view, the principle laid down in that decision cannot have any application to testamentary jurisdiction where the final decision passed is a judgment in rem and is binding against the whole world unlike the ordinary cases where the judgment is only binding upon the parties or their representatives. The Probate Court is vested with power under Section263 to revoke a probate even suo motu if it appears that there is a just cause for revocation and the Court's attention is drawn to such fact by even a third party. Therefore, simply because the present applicants were not parties to the appeal, that fact cannot stand in their way in applying for review when they are undisputedly heirs and legal representatives of the deceased testator in case of intestate succession having coveatable interest in the probate proceedings.

IN THE HIGH COURT OF CALCUTTA

R.V.W. 2116 of 2005 in F.A. No. 311 of 1988

Decided On: 21.04.2006

 Uma Addhya Vs. Biren Mondal

Hon'ble Judges/Coram:B. Bhattacharya and P.N. Sinha, JJ.

Citation: AIR 2006 Cal 200

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