Dhiraj Dutta vs Anirban Sen

2026 INSC 602
REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. __________________ OF 2026
(Arising out of SLP (C.) No. 3371 of 2026)


DHIRAJ DUTTA ... APPELLANT(S)

VERSUS

ANIRBAN SEN & ORS. ... RESPONDENT(S)

J U D G M E N T
SANJAY KAROL, J.
Leave Granted.
2. Smt. Gouriprova Sen, inherited the properties of her
husband Mr. Amulya Chandra Sen, by virtue of being his sole
Signature Not Verified
Digitally signed by
SOURAV PAL
Date: 2026.05.29
18:15:41 IST
Reason:
legal heir. Certain portion of these properties stood gifted to the
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1 th
appellant by a deed . Her Will was dated 9 July 1989 whereby
the appellant, her nephew was made the sole executor and
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beneficiary. She died shortly thereafter on 8 October 1989. The
transfer of properties in his name by virtue of this will is the
genesis of the present dispute.
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3. The appellant’s application for probate of the said Will
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was granted vide order dated 28 September 1995. Further
3
proceedings for necessary changes in the Revenue Record were
initiated somewhere in 2010-11. As per the appellant, notices
were served to the predecessor in interest of the respondent in
these proceedings. As per the respondents, who are nephews-in-
law of the testatrix and the only surviving members of the family
of the testatrix’s husband, however, they found out somewhere in
2019 consequent to which they filed suit for declaration and
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injunction in which the appellant has undisputedly, filed his
written statement. This suit is apparently pending before the
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jurisdictional Court. On 5 July 2022 the respondents herein filed
an application under Section 263 of the Indian Succession Act
5 6 th
1925 seeking revocation of the probate granted on 28
September 1995.

1 th
bearing no.4905 of 1978 dated 15 august 1978
2
PLA No.238 of 1995
3
O.A. No.1417 of 2012
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Title suit no.60 of 2019
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ISA
6
G.A 02 of 2022
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th
4. The learned single Judge in terms of order dated 16 June
2023 dismissed the application holding the same to be barred
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under the provisions of the Limitation Act 1963. On appeal , the
learned Division Bench, taking a different view, allowed the
appeal and as such, the matter stands before us. We are therefore,
required to decide whether the application for revocation of the
probate filed in 2022 is within limitation, or outside it, given the
differing view of the Courts below.
5. The provision concerned with the revocation of probate
under the ISA reads thus:
“ 263. Revocation or annulment for just cause.—
The grant of probate or letters of administration may be
revoked or annulled for just cause.
Explanation. —Just cause shall be deemed to exist
where—
(a) the proceedings to obtain the grant were defective in
substance; or
(b) the grant was obtained fraudulently by making a false
suggestion, or by concealing from the Court
something material to the case; or
(c) the grant was obtained by means of an untrue
allegation of a fact essential in point of law to justify the
grant, though such allegation was made in ignorance or
inadvertently; or
(d) the grant has become useless and inoperative through
circumstances; or
(e) the person to whom the grant was made has wilfully
and without reasonable cause omitted to exhibit an
inventory or account in accordance with the provisions
of Chapter VII of this Part, or has exhibited under that

7
A.P.O No. 125 of 2023
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Chapter an inventory or account which is untrue in a
material respect.
Illustrations
(i) The Court by which the grant was made had no
jurisdiction.
(ii) The grant was made without citing parties who ought
to have been cited.
(iii) The Will of which probate was obtained was forged
or revoked.
(iv) A obtained letters of administration to the estate of
B, as his widow, but it has since transpired that she was
never married to him.
(v) A has taken administration to the estate of B as if he
had died intestate, but a will has since been discovered.
(vi) Since probate was granted, a latter Will has been
discovered.
(vii) Since probate was granted, a codicil has been
discovered which revokes or adds to the appointment of
executors under the Will.
(viii) The person to whom probate was, or letters of
administration were, granted has subsequently become of
unsound mind.”
(emphasis supplied)

The ISA does not provide any limitation for grant of probate or
to move an application for the revocation thereof and as such
recourse must be made to Article 137 of the Limitation Act 1963.
The same is as follows:

PART II—OTHER APPLICATION

137. Any other
application for which
no period of limitation
is provided elsewhere
in this Division.
Three years. When the
right to apply
accrues

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6. In light of these provisions, we are required to undertake a
determination on facts. To restate for the purposes of ease, it is
the appellant’s case that the limitation would apply from 2013
when notice was served to the respondents in the mutation
proceedings and on the contrary the respondents contend that
their application for revocation of probate is within limitation
since they acquired knowledge somewhere in 2019 only.

7. The question of limitation on revocation of probate was
authoritatively dealt with by a judgment of this court in Lynette
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Fernandes v. Gertie Mathias and Ramesh Nivrutti Bhagwat v.
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Surendra Manohar Parakhe.

8. As to when “ the right to apply ” would accrue, that depends
on the date from which the party making the application had
knowledge. In this case, that would be the respondents. In 2013,
when notice was served to them, that was regarding mutation
proceedings initiated by the present appellant. In the revocation
of probate application filed in 2022, it is submitted by the
Respondents that notice was indeed served upon them with
reference to the mutation proceedings but in effect, they chose to

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(2018) 1 SCC 271
9
(2020) 17SCC 284
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ignore the same, since they already enjoyed entries in their favour.
The relevant extract of the application is as under:

“9. In July, 2013, a copy of the original application
being O.A. No.1417 of 2012 was served upon the said
heirs of Gouriprova Sen, since deceased. But being
heirs of said Gouriprova Sen, the names of Aswini and
Shankar have been mutated in respect of the proprieties
of said Gouriprova Sen since deceased. As the mutation
has been made infavour of Aswini and Shankar, they
did not contest the said original application. The
Learned West Bengal Land and Land Reforms Tribunal
dismissed the said original application. The Learned
West Bengal Land and Land Reforms Tribunal
dismissed the said original application. Against the said
order Learned Tribunal, Dhiraj Dutta, the alleged
legatee preferred writ petition being WPLRT No.103 of
2019 before the Hon’ble High Court Calcutta which
was also dismissed from default.
”

9. The question now is whether these proceedings at the
instance of the appellant amounts to constructive notice to the
respondents regarding the grant of probate in his favour. From
perusal of the judgments of this Court [See: Rajasthan Housing
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Board v. New Pink City Nirman Sahkari Samiti Ltd. ;
11
Dharmrao Sharanappa Shabadi v. Syeda Arifa Parveen ;
Ahmedabad Municipal Corpn. v. Haji Abdulgafur Haji
12
Hussenbhai ], following facets can be deduced regarding
constructive notice:

10
(2015) 7 SCC 601
11
(2026) 3 SCC 460
12
(1971) 1 SCC 757
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(a) It is a deeming fiction within law that originated
from equity and is distinguishable from actual notice as
it is an inferral by law;
(b) It hinges on either wilful abstention or gross
negligence. To understand what may constitute either of
these two, see Haji Abdulgafur Haji Hussenbhai
(supra).
(c) The question of whether or not something qualifies
as constructive notice is either a question of fact or a
mixed question of law and fact dependant on the facts and
circumstances of each case;
(d) The standard to be applied in determining wilful
abstention or gross negligence is that of a reasonably
prudent man as applied in Indian conditions;

10. It is admitted by the respondents herein that notice was
served but it is also a matter of record that they chose not to do
anything. This cannot be termed to be the conduct of a reasonably
prudent man. If a Court of law has sent someone a notice, the least
that can be accepted is for them to make attempts to find out why
the same may have been sent to them and what they would be
required to do in regard thereto. This is more so the case when the
respondents already had mutation entries in their favour and yet
the notice received by them were in connection with mutation
proceedings initiated by a third party. After all, if the mutation
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proceeding by the appellant had succeeded there would be
competing rights of equal stature regarding the same properties
since it is well established that mutation proceedings do not
confer any title. When the enjoyment of a particular property
rests on such flimsy grounds, it can only be expected that they
would attempt to go to the root of the matter and find out why the
notice came to be issued in the first case. This was not done. It
was entirely possible that the person who had initiated the
subsequent mutation proceedings had a better claim over the
property than the respondents. Yet no action was taken. We also
notice that in the application for revocation of probate, when it
comes to the time period between 2013 and 2019 when the title
suit was filed, all that has been said is that the appellant attempted
to threaten them and dispossess them of their right, title and
interest. How the right and title came to rest with them, they are
silent. How is it that the appellant threatened them nothing but
more silence.

11. In these facts and circumstances, the notice in mutation
proceedings would be deemed constructive notice. Attempts
ought to have been made to figure out on what basis the mutation
proceedings came to be filed, and the limitation as given under
Article 137 would have applied from the day they would have
found out that the said proceedings rested on probate of Will
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granted to the appellant. At any rate, the same would not have
been 2019 to fall within the prescribed limitation in 2022. The
respondents’ application for revocation of probate would
hopelessly be time barred. Consequently, the judgment of the
learned Division Bench had to be set aside and that of the learned
Single Judge is ordered to be restored. All necessary
consequences will follow.
Appeal is allowed and applications pending shall be
disposed of. Costs will be made easy.


…………………..…….J.
( SANJAY KAROL)



…………………………J.
(VIPUL M. PANCHOLI)
New Delhi;
May 29, 2026
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