RAJESH SHARMA Vs. KRISHAN KUMAR SHARMA

JUDGEMENT

(1.) This first appeal is filed under Section 299 of the Indian Succession Act, 1925 challenging the judgment of the probate court dated 3.8.2002 dismissing the probate petition as barred by time. I may note that probate court has otherwise held that the Will in question dated 13.7.1989 of the deceased testatrix Smt. Sneh Prabha Sharma was duly executed and attested, and the deceased testatrix Smt. Sneh Prabha Sharma was of sound disposing mind at the time of making of the Will. In this appeal cross-objections have also been filed by the respondent, and who was respondent no. 2/objector before the probate court. Cross-objections challenge the findings of the probate court that the Will has been proved as the same was duly executed and attested and the deceased testatrix Smt. Sneh Prabha Sharma was of sound disposing mind at the time of making of the Will.

(2.) Learned counsel for the appellant has argued that the probate court has committed an error in dismissing the petition as barred by time because in the present case limitation does not arise from the date of the death of the testatrix and limitation only arises on arising of a cause of action under Article 137 of the Limitation Act, 1963 and which would be in knowledge of the appellant that the objector/respondent is disputing the Will, and since no such objection has been proved to have been raised by the objector/respondent by leading of any evidence that the Will in question was disputed to the knowledge of the appellant/petitioner three years prior to filing of the probate petition, the probate petition cannot be dismissed as being barred by time.

(3.) The Supreme Court has now held in the judgment passed in this very case in Civil Appeal no. 1967/2009 that Limitation Act, 1963 applies to filing of a probate petition. The first appeal filed in this Court was allowed by a judgment of a learned single Judge of this Court on 5.7.2007 and it was also held therein that Limitation Act, 1963 does not apply to a probate petition. This judgment of the learned single Judge dated 5.7.2007 was challenged in the Supreme Court, and the Supreme Court vide its judgment dated 27.3.2009 in Civil Appeal no. 1967/2009 held that Article 137 of the Limitation Act, 1963 applies to filing of a probate petition.