Probate is barred by Article 137 limitation and invalid where witnesses sign before the testator.

The appellant sought probate of a Will dated 12.08.2008, allegedly executed by Late Surendra Gosai, who died on 08.06.2011.

The Will purportedly bequeathed property to the testator’s nephew, Abhijit Goswami, with the appellant (his mother) named as the executor.

The probate application was filed on 17.03.2015, approximately nine months after the three-year limitation period expired.

The respondents (legal heirs) contested the Will, alleging it was forged on blank papers signed by the testator for use in litigation.

The Trial Court dismissed the suit as barred by limitation but held the Will to be validly executed.

The appellant challenged the limitation finding, while the respondents filed cross-objections against the finding of the Will’s validity.

1. Whether the application for probate was barred by limitation?

2. Whether the Will was proved to have been duly and validly executed?

The Court applied Section 222 of the Indian Succession Act, which restricts probate grants to appointed executors

Section 223, which prohibits granting probate to minors.

Limitation for probate is governed by Article 137 of the Limitation Act, providing a three-year period from when the right to apply accrues, as established in Ramesh Nivrutti Bhagwat v. Dr. Surendra Manohar Parakhe.

Regarding execution, the Court relied on Section 63(c) of the Indian Succession Act, requiring the testator to sign before the attesting witnesses

Section 68 of the Evidence Act, requiring at least one attesting witness to prove execution.

Section 71 of the Evidence Act allows for other evidence if an attesting witness denies or forgets execution, but it cannot cure fundamental legal defects in the attestation process.

On the first issue, the Court rejected the appellant's argument that the limitation period should be extended because the beneficiary was a minor.

It held that the right to apply for probate accrued to the executor (the appellant) immediately upon the testator’s death in 2011.

Since the appellant was an adult with contemporaneous knowledge of the Will, the application filed in 2015 was barred by Article 137.

On the second issue, the Court scrutinized the testimony of PW-2 (the attesting witness), who admitted during cross-examination that he signed the Will before the testator.

The Court held this was a fatal violation of Section 63(c) of the Succession Act, which mandates that the testator must sign or acknowledge his signature before the witnesses attest.

The Court further noted that the other attesting witness was not examined, and the scribe (PW-3) could not substitute for an attesting witness.

Suspicious circumstances, including the four-year delay in filing and inconsistencies regarding the type of paper used for the Will, further undermined the proponent's case.

It held that (1) the probate application was barred by limitation as it was filed beyond three years from the testator's death without valid explanation

(2) the Will was not proved to have been duly and validly executed because the attesting witness signed before the testator, violating mandatory statutory procedures.

The Trial Court's finding on the validity of the Will was set aside.