Authored By Kiran Raj

The Karnataka High Court, on December 12, 2024, held that the Limitation Act, 1963, applies to proceedings involving Wills, including probate cases, subject to all just exceptions. The Division Bench of Justice Krishna S Dixit and Justice C M Joshi delivered this decision while allowing an Original Side Appeal filed against the dismissal of a probate case on grounds of limitation.

The appellant, the seventh successive Peethaadhipati (Pontiff) of the Gurugunda Bramheshwara Swamy Mutt in Tumkur district, had sought probate for a registered Will allegedly executed by an earlier Pontiff of the Mutt. The Single Judge had dismissed the case as barred by limitation, favoring the respondents’ application under Order VII Rule 11(d) of the Civil Procedure Code, 1908.

"The Limitation Act, 1963, applies to proceedings founded on Wills as it does to other legal actions. In the absence of a specific provision, the residuary Article 137 would apply, providing a limitation period of three years from the date the right to apply accrues," the Bench held.

The appellant filed probate proceedings in 2017 based on a Will executed in 1989. However, the respondents argued that the proceedings were time-barred under Article 137 of the Limitation Act, as the appellant's related application in earlier civil litigation was rejected in 1995. The Single Judge upheld this contention, leading to the appeal.

The appellant’s counsel contended that Hindu Wills, except those involving properties in Presidency Towns, do not require probate and do not lose validity due to time lapse. He argued that the probate proceedings had elements of a continuing cause of action and could not be barred by limitation.

On the other hand, the respondents argued that the Limitation Act applied even to probate proceedings, and the right to apply for probate accrued when the appellant’s earlier application regarding the Will was rejected in 1995.

The Bench recorded that Wills, by their nature, are ambulatory and do not expire with time. However, it asserted that the Limitation Act applies to probate proceedings through Article 137, which prescribes a three-year limitation period for applications without a specific limitation period.

"Wills do not commit legal suicide by mere efflux of time. However, limitation applies from the point the right to apply accrues. This is in consonance with the legislative intent behind Article 137 of the Limitation Act," the Court observed.

The Bench observed that the appellant’s earlier applications and related litigation did not conclusively resolve the validity of the Will. The Court noted that the Munisiff’s adverse finding on the Will’s validity in 1995 was subsequently rendered inconclusive by a Single Judge of the High Court. Additionally, related litigation in 1996 concerning the Will’s validity kept the matter alive until its dismissal in 2016.

"The cause of action for probate proceedings became choate only after the dismissal of related litigation in 2016. Thus, the probate proceedings instituted in 2017 are within the period of limitation when the time spent in prior litigation is excluded under Section 14 of the Limitation Act," the Court stated.

The Bench held that the time spent in bona fide litigation involving the same subject matter should be excluded in computing the limitation period. "The appellant is entitled to exclusion of time spent during the pendency of suits dismissed in 1995 and 2016 under Section 14 of the Limitation Act. This ensures that the probate proceedings are not barred by limitation," it held.

The Division Bench set aside the Single Judge’s order and remanded the matter for adjudication on merits. It directed that the Testamentary Original Suit (TOS No. 1/2023) be tried and disposed of in accordance with the law.

"The impugned judgment dismissing the appellant's case on grounds of limitation is set aside. The probate proceedings are revived and remanded for trial," the Bench concluded.

Case Title: Sri Nanjavudootha Swamiji v. Sri S Linganna & Ors.
Case Number: OSA No. 9 of 2024
Bench Details: Justice Krishna S Dixit and Justice C M Joshi

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