Delhi High Court – Orders
Bimla W/O Late Mahavir Singh, R/O B-169, … vs 1. State Through Chief Secretary South … on 25 March, 2026
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
$~62
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 277/2026, CM APPL. 18905/2026, CM APPL. 18906/2026
BIMLA
W/o Late Mahavir Singh,
R/o B-169, Opposite Pole No. 136,
Mohalla Kaba, Near Shiv Mandir,
VPO-Chhawla, Delhi-110071 .....Appellant
Through: Dr. Adv Manish Aggarwal, Mr.
Vishal Arun Mishra, Ms. Rupali
Panwar, Ms. Namrata Sharma, Mr.
Amit Ambawat and Ms. Shilpa
Kumari, Advocates.
Versus
1. STATE
Through Chief Secretary
South West, Old Tax Terminal Building,
Kapasera, New Delhi
[email protected]
2. SH. JAGDISH SINGH
S/o Late Kehri Singh
Rio H. No. 562, Krishna Kuteer,
Sector 31, Near Jalvayu Vihar,
Gurugaon, Haryana
3. SH. SAMEER SINGH
S/o Sh. Jagdish Kumar
Rio H. No. 562, Krishna Kuteer,
Sector 31, Near Jalvayu Vihar,
Gurugaon, Haryana
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4. SH. BIR SINGH
S/o Late Gun1 Prakash
R/o VPO Dhansa, New Delhi
5.SMT NIRMALA
D/o Late Gmu Prakash
R/o H No. B-168,
Panna Gaba, Near Shiv Mandir,
VPO- Chhawla, New Delhi .....Respondents
Through: Ms. Rachita Garg, Adv, Ms. Varsha,
Adv for Respondent No.1/State.
Mr Tushar Sannu, Mr Parvin Bansal,
Advocates for Respondent NSES.
Mr Akash Vajpai, Ms Pallavi Awasthi
and Ms Vaibhavi Mittal, Advocates.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
ORDER
% 25.03.2026
1. The present Regular First Appeal under Section 96 CPC has been
filed on behalf of the Appellant, for setting aside the Judgment and Decree
dated 09.01.2026, whereby the Suit of the Plaintiff has been dismissed on
the preliminary objection of being barred by limitation.
2. The facts in brief are that, Shri Kehri Singh (deceased) was the
recorded bhumidar of agricultural land ad-measuring 26 bighas and 16
biswas, in village Dhansa. He had served in the Army on the post of Junior
Commissioner Officer and thereafter, he retired. On 27.06.1990, Kehri
Singh made a Complaint against Respondent No.2 regarding the ordeal
faced by him at his hands to the Commandant, IMA. The Department
responded vide Letter dated 03.07.1990, to the Complaint of Kehri Singh.
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3. Shri Kehri Singh executed a handwritten Will on 17/18.03.1991 in
favour of the Appellant, Respondent No.3 and Respondent No.4 in the
presence of witnesses, namely Sh. Sher Singh and Sh. Hari Rana, without
any pressure and coercion. The witnesses had duly signed every page of the
Will. Shri Kehri Singh passed away on 16.06.1993, leaving behind his sons,
namely Shri Guru Prakash (since deceased), Shri Om Prakash (since
deceased) and Shri Jagdish Kumar (Respondent No.2). The Appellant herein
is the daughter of Shri Om Prakash.
4. After the demise of Shri Kehri Singh, Shri Guru Prakash filed an
Application under Section 64 Delhi Land Reforms Act seeking mutation of
the Suit property in his name and of Respondent No.2, without disclosing
the existence of the Will in respect of the Suit property. The Tehsildar,
Najafgarh vide Order dated 09.07.1996, effected the mutation in favour of
the Respondents. The Appellant was not aware about the same, as the
mutation had been carried out behind her back.
5. The Appellant thereafter, preferred an Application under Section 185
Delhi Land Reforms Act, 1954 before the Deputy Commissioner, South
West, Delhi on 22.02.2012, along with an Application for Condonation of
Delay. However, the Application was dismissed by learned Deputy
Commissioner vide Order dated 27.06.2012, on the ground of it being barred
by limitation.
6. The Appellant thereafter, preferred an Appeal bearing No.283 of
2012 before the learned Financial Commissioner, Delhi. The said Appeal
was subsequently renumbered as Case No.308 of 2017. During the pendency
of the Appeal before the learned Financial Commissioner, Late Shri Sher
Singh, who was one of the attesting witnesses to the aforesaid Will, on
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08.01.2014, in his statement admitted that the Will in question had been
executed by Late Shri Kehri Singh in respect of the subject property.
7. The Financial Commissioner, vide Order dated 20.07.2023,
dismissed the Appeal by observing that the question of legality and validity
of a handwritten unregistered Will, needs to be examined by a competent
Civil Court.
8. The Appellant then filed PC No.60/2023 seeking grant of Probate in
respect of the Will.
9. A Written Statement was filed by the Respondent, to which a
Replication was filed.
10. The learned District Judge, vide impugned Order dated 09.01.2026,
dismissed the Probate Petition on the sole ground of it being barred by
limitation.
11. The impugned Order is challenged on the ground that it has not
been considered that the question of limitation, is a mixed question of fact
and law, and the Court ought to have considered the documents relied upon
by the Appellant.
12. The Hon’ble Supreme Court, in the case of Kunvarjeet Singh
Khandpur vs. Kirandeep Kaur (2008) 8 SCC 463, stated that the right to
apply for Probate is a continuous right, not contingent on the date of the
testator’s death but on the moment when the obligation to seek
acknowledgment from the Court arises. The determination of obligation is
based on the encroachment of the Executor’s right by another party, leading
to the accrual of the right to apply. The withdrawal of Probate proceedings
and subsequent filing of a Petition for Letter of Administration, are
identified as events triggering this accrual of the right to apply.
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13. The learned District Judge miserably failed to consider that the sole
stand of the Respondent was that the cause of action for filing the present
Petition would begin from the 11.01.2013, when the Respondent filed the
reply in the Second Appeal before the learned Finance Commissioner,
wherein the allegation regarding the genuineness of the Will was raised is
wrong. It is contended that the cause of action under Article 137 Limitation
Act would begin from the date when final Order dated 20.07.2023 was
passed by the learned Finance Commissioner, whereby it was observed that
the validity of the Will can only be determined by a Civil Court.
14. Since the judgment of the learned Financial Commissioner was
passed on 20.07.2023, which directed the Petitioner to approach a competent
Civil Court for seeking probate of the unregistered handwritten Will, the
cause of action for filing the Probate Petition accrued then; hence, the
Petition was instituted well within the period of limitation.
15. Reliance in this regard has also been placed on Hanuman Prasad
Agarwal vs. Satyanarain Agarwal AIR 2020 Cal 246, wherein it has been
reiterated that under Article 137 Limitation Act, the right to apply accrues
when there is denial of right prompting the need to assert it.
16. The Appellant further stated that she had been diligently prosecuting
her rights before the Revenue Authorities, including the Deputy
Commissioner, to challenge the Mutation on the basis of Will and thus, the
period spent upon in such Forums, is liable to be excluded under Section 14
Limitation Act, which provides any prosecution with due diligence in good
faith, has to be considered where the proceedings failed due to defect of
jurisdiction. The cause of action arose only on 20.07.2023, when the learned
Financial Commissioner dismissed the Appeal, against the Mutation.
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17. The learned Counsel on behalf of the Respondent who has appeared
on Notice, has vehemently opposed the Appeal and has submitted that the
benefit of Section 14 as asserted by the Appellant, cannot be granted in the
given situation. It has been rightly observed by the learned district Judge that
the cause of action at best arose in 2013, and the limitation for filing the
Probate expired after three years.
18. It is further submitted that the Appellant pertinently failed to disclose
in the entire Probate, about the date when she came to know about the
Mutation. Thus, the Probate is patently barred by limitation and has been
rightly rejected.
Submissions heard and record perused.
19. In the present case, Plaintiff/Appellant has relied upon the
handwritten Will dated 17/18.03.1991 of Shri Kehri Singh, who died on
16.06.1993. According to the Appellant, Respondent No.2 was not given
any share in the agricultural land. The father of Respondent No.4 and
Respondent No.5, initiated mutation proceedings in respect of the said land,
in his own favour and of Respondent No.2, surreptitiously and with
deliberate concealment of the Will. The aforementioned Mutation Order was
passed on 09.07.1996.
20. The aforesaid act of seeking and obtaining mutation, in disregard of
the alleged Will, is clearly inconsistent with the rights claimed by the
Appellant under the Will. While the Appellant has asserted that the mutation
proceedings were conducted without her knowledge, it is not in dispute that
she had acquired knowledge thereof, prior to filing the First Appeal on
22.02.2012, after which she preferred proceedings before the Deputy
Commissioner challenging the mutation. Thus, at least from that date, the
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Appellant was fully aware that her claimed rights under the Will, were not
being recognised and were being disputed and denied by the Respondents.
21. Learned Deputy Commissioner decided the matter against the
Appellant, against which Second Appeal was preferred before the learned
Financial Commissioner. In these proceedings, Respondents filed a Reply
dated 11.01.2013, wherein the genuineness of the Will was categorically
disputed and the document was described as forged and fabricated. This
constitutes a clear and unequivocal denial of the Appellant’s asserted rights
under the Will, to her knowledge.
22. Thus, on that date, Appellant was unequivocally put to Notice of the
Respondents’ rejection of the validity of the Will and consequently, of the
denial of her Rights thereunder.
23. Learned District Judge has rightly referred to Pamela Manmohan
Singh vs. State, 83 (2000) DLT 469, wherein it was held that the period of
three years would commence, at the very least, from the date on which a
legatee under a Will, could reasonably be attributed with knowledge that the
Will forming the basis of his or her claim, was likely to be disputed by other
persons, particularly the natural heirs of the testator.
24. Similar observations were also made in Pratap Singh vs. State, 2010
SCC OnLine Del 2715 and in Geeta Tandon vs. Sunil Gomber, 2023 SCC
OnLine Del 2067, wherein it has been consistently held that though the right
to apply for Probate is a continuing right in the absence of dispute, but once
the Will is disputed and such dispute is within the knowledge of the
propounder, the period of limitation under Article 137 begins to run.
25. Therefore, the settled legal position is that the right to seek grant of
Probate or Letter of Administration, is a continuing right so long as the Will
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remains undisputed. The obligation to approach the Court arises only when
the validity of the Will is challenged or denied. Once such a dispute is raised
and comes to the knowledge of the legatee or propounder, the limitation
under Article 137 of the Limitation Act begins to run and probate
proceedings must be instituted within three years from the date of acquiring
knowledge of the dispute. Therefore, the right continues in the absence of
challenge, but becomes time-bound upon awareness of contestation. The
propounder must institute Probate proceedings within three years, from the
date of acquiring knowledge of such dispute.
26. In the present case, the Respondents filed a Reply dated 11.01.2013
before the learned Financial Commissioner, expressly disputing the
genuineness of the Will. This constituted a clear denial of the Appellant’s
asserted rights under the Will, and from this date, the Appellant was
unequivocally aware that the Will was contested. Consequently, the period
of limitation under Article 137 commenced from 11.01.2013. The Probate
petition was, however, filed only on 29.03.2023, nearly a decade later, and is
therefore clearly barred by limitation.
27. The Appellant has further relied on the case of Kunvarjeet Singh
Khandpur (Supra), and Hanuman Prasad Agarwal (Supra), to contend that
right to seek Probate/Letter of Administration, is a continuing right.
However, as noted above, if there is no dispute, then the right is indeed a
continuing one but once a dispute is raised, then the limitation is of three
years from the date when the Will is challenged. Therefore, these judgments
are of no assistance to the Appellant.
28. The Appellant has further referred to the Affidavit dated 08.01.2014
filed by the attesting witness Shri Sher Singh, asserting the genuineness of
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the Will. However, this Affidavit itself demonstrates that a dispute had
infact, arisen and that the Appellant felt compelled to assert the validity of
the Will. This confirms that the contest existed in 2013-2014, further
underscoring that the Probate petition filed in 2023 is patently barred by
limitation.
29. The plea of exclusion under Section 14 of the Limitation Act is
untenable in the facts of the present case. Section 14 permits exclusion of
time spent in bona fide prosecution of a prior civil proceeding, pursued with
due diligence and in good faith, which fails on account of defect of
jurisdiction or other cause of a like nature. In the present case, the earlier
proceedings before the Revenue Authorities were not dismissed for want of
jurisdiction, but on the ground of limitation and on merits. Therefore, the
essential pre-condition for invoking Section 14 is not satisfied. Moreover,
the Appellant was aware of the denial of her rights under the Will at least
since 11.01.2013, and thus cannot seek to extend the limitation period by
relying upon proceedings that were neither incompetent for want of
jurisdiction nor pursued within the prescribed limitation. Accordingly, the
benefit of Section 14 is not available.
30. The Appellant has failed to show any cogent reason to question the
impugned Judgment. The impugned judgment, therefore, does not suffer
from any infirmity, warranting interference.
31. There is no merit in the Appeal, which is hereby, dismissed along
with pending Applications.
NEENA BANSAL KRISHNA, J
MARCH 25, 2026/va/R
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