Is it true that a Will can be challenged on the ground of ‘period of limitation’?
— Nikhil Desai
The Indian Limitation Act, 1963, does not stipulate the period within which a petition for probate or letter of administration or succession certificate must be filed after the death of the deceased. Therefore, the three-year period rule does not strictly apply to a petition for the grant of probate. The Supreme Court clarified the position of law that the right to apply for probate is a continuing right that can be exercised as long as the object of the trust exists or if any part of the trust has been created, then executed. remains to be done. Being a continuing right, the right can be exercised at any time after the death of the deceased, as long as the right to do so exists. Therefore the right to apply may not necessarily be obtained within 3 years from the date of death of the deceased, but when it becomes necessary to make an application, which may be at any time after the death of the deceased, irrespective of several years. be after years. The top court has also emphasized the fact that though the three-year period does not apply. Delay in making an application may give rise to doubts and the longer the delay, the stronger the doubt in the mind of the competent court. And for the same, the applicant has to justify the delay.
My brother, who had a flat in Kolkata jointly with his wife, passed away last year. His wife now lives there with her sister. Do I have any claim on the flat?
– Name withheld on request
We believe that your brother passed away without a will and further that he was a Hindu and that the personal laws applicable to Hindus were applicable to him at the time of his death.
Therefore, as per the Hindu Succession Act, 1956, the property of the deceased would first transfer to the Class I heirs of the deceased and in their absence, the Class II heirs would be entitled to the property.
You have stated that the flat was jointly owned by your brother and his wife. We once again assume that both (brother and his wife) have equal undivided rights, title and interest in the flat and as such the brother’s 50% undivided rights, title and interest in the flat are transferred to his class I heirs who will be his wife/widow in the instant case, provided he has no child or mother. As a sibling, you will not have a claim if the deceased has Class I heirs.
Aradhana Bhansali is a partner of Rajni Associates.