What is the period of limitation and when does it start?

Is it true that a Will can be challenged on grounds of ‘period of limitation’? 

                                   — Nikhil Desai

The Indian Limitation Act, 1963, does not prescribe a period within which a petition for probate or letters of administration or succession certificate must be made after the deceased’s death. Therefore, the rule of three-year period is not strictly applicable to a petition for a grant of probate. The Supreme Court has clarified this position of law that the right to apply for probate is a continuous right that is capable of being exercised as long as the object of the trust exists or any part of the trust if created, remains to be executed. Being a continuous right, the right may be exercised at any time after the death of the deceased, as long as the right to do so exists. The right to apply may therefore accrue not necessarily within 3 years from the date of the deceased’s death but when it becomes necessary to apply, which may be any time after the death of the deceased, be it after several years. The apex court has also emphasized the fact that though the three years period is not applicable. the delay in making the application may rightly give cause for suspicion and the greater the delay, the stronger would be the suspicion in the minds of the competent court. And for the same, it is for the applicant to justify the delay.

My brother, who jointly owned a flat with his wife in Kolkata, died last year. His wife now lives there with her sister. Do I  have any claim on the flat? 

— Name withheld on request

We assume that your brother has passed away intestate i.e. without a Will and further that he was a Hindu and personal laws applicable to Hindus were applicable to him at the time of his demise.

Therefore, as per the Hindu Succession Act, 1956, the estate of the deceased would first devolve upon the class I heirs of the deceased and in their absence, class II heirs would be entitled to the estate.

You have said the flat was jointly owned by your brother and his wife. We once again assume that both (the brother and his wife) hold equal undivided rights, title and interest in the flat and in such case the brother’s 50% undivided rights, title and interest in the flat would be devolved unto his class I heirs, which in the instant case would be his wife/the widow, provided he has no children or mother. As a brother, you will not have a claim if there are class I heirs of the deceased.

 Aradhana Bhansali is partner, Rajani Associates.