In Sanjay Sharma @ Sanjay Bhardwaj v. Krishnadhan Khaware and Ors. [2026 INSC 708], the Supreme Court, while considering the limited issue of whether an application for probate was barred by limitation, held that the right to apply for probate is a continuous right that can be exercised at any time so long as the object of the Will survives.
Right to Apply Probate Accrues from the Date It Becomes Necessary
The right to apply accrues from the date it becomes necessary to seek probate — for instance, when someone takes an action hostile to the position established by the Will — and need not arise within three years of the testator’s death.
The Court clarified that probate of a Will serves a three-fold purpose: it affixes judicial approval on the genuineness of the Will; it recognises the appointment of the executor named in the Will; and it confers on the executor the authority to act for the purposes of the Will.
Applying the Principle Before Kerala Courts
Probate petitions in Kerala are filed before the District Court having jurisdiction over the place where the testator ordinarily resided at death (or where any part of the property is situate), under Section 264 of the Indian Succession Act, 1925.
The High Court’s role is confined to appeals and revisions arising from such petitions — the posture in which Sanjay Sharma itself reached the Supreme Court.
Limitation Period for Filing Probate Petition
In regard to limitation period, Kerala District Courts, like courts elsewhere, apply Article 137 of the Limitation Act, 1963 (three years from when “the right to apply accrues”) to probate petitions, since the Indian Succession Act prescribes no limitation period of its own.
Sanjay Sharma case reinforces that the trigger date is not mechanically the testator’s death but the date a real necessity arises — typically when someone acts adverse to the Will’s dispositions (a sale, a rival succession claim, a General Power of Attorney, obstruction to mutation, etc.).
A District Court rejecting a probate petition solely because it was filed years after death, without examining when that necessity actually arose, would run contrary to this ruling.
Probate: A Mixed Question of Law and Fact
The Court also held that limitation in probate matters is often a mixed question of law and fact, and disputed facts bearing on genuineness or accrual of the cause of action should not be adjudicated at the threshold under Order VII Rule 11 CPC. This means an objector cannot get a probate petition dismissed in limine merely by pointing to the death date; the petitioner must be allowed to lead evidence on when the necessity to probate arose.
When Contested a Probate petition Turns into a Civil Suit
If the probate petition is contested, the original petition stands converted into a suit.
The Kerala High Court in K.G. Sunilkrishnan v. K.G. Premsankar held that in Kerala the court fee on a converted contested probate suit is payable under Article 11(k), Schedule II of the Kerala Court-Fees and Suits Valuation Act, 1959, rather than the ad valorem fee under Section 56 of the same Act that applies to uncontested petitions. Once converted to a suit, any limitation defence is raised as an issue in the suit — again to be decided on evidence, not summarily.
That means, in an uncontested application falling under Section 56 of the Court Fees Act, the court fee is to be paid under Article 6 of Schedule I of the Act and in a contested application, the court fee is to be paid under Article 11 (k) of Schedule II of the Act, i.e., one half of the scale of fees prescribed under Article 1 of Schedule I of the Court Fees Act.
