Notice of mutation proceedings can constitute constructive notice of the underlying probate; a person who wilfully ignores such notice cannot postpone limitation for seeking revocation of probate under S.263 ISA.
Facts
Smt. Gouriprova Sen inherited the properties of her husband and executed a Will dated 9 July 1989, appointing the appellant (her nephew) as sole executor and beneficiary. She died on 8 October 1989. Probate of the Will was granted to the appellant on 28 September 1995. Thereafter, mutation proceedings were initiated by the appellant around 2010–11. According to the appellant, notice of those proceedings was served upon the respondents’ predecessor-in-interest in 2013. The respondents claimed that they became aware of the probate only in 2019 and thereafter instituted a title suit. In 2022, they filed an application under S.263 ISA seeking revocation of the probate. The Single Judge dismissed the application as barred by limitation, whereas the Division Bench reversed that finding. The Supreme Court considered whether the revocation application was within limitation.
Issues Framed
Whether the application for revocation of probate filed in 2022 under S.263 ISA was within limitation under Art.137 Limitation Act, 1963, or was time-barred.
Court’s Reasoning
(a) Limitation Applicable to Revocation of Probate
The Court noted that the ISA prescribes no limitation period for revocation of probate. Consequently, Art.137 Limitation Act, 1963 applies, providing a limitation period of three years from the date when “the right to apply accrues.” (Para 5).
(b) Accrual of the Right to Apply
Relying upon Lynette Fernandes v. Gertie Mathias and Ramesh Nivrutti Bhagwat v. Surendra Manohar Parakhe, the Court held that accrual depends upon when the applicant acquires knowledge giving rise to the right to seek revocation. (Paras 7–8).
(c) Constructive Notice
The Court examined whether service of notice in the mutation proceedings amounted to constructive notice of the probate. Referring to Rajasthan Housing Board, Dharmrao Sharanappa Shabadi, and Ahmedabad Municipal Corpn., the Court summarized that constructive notice is a legal fiction based upon wilful abstention or gross negligence, judged by the standard of a reasonably prudent person. (Para 9).
The respondents admitted receiving notice in 2013 but chose not to act. The Court held that a reasonably prudent person receiving court notice regarding mutation proceedings affecting property rights would have investigated the basis of such proceedings. Their deliberate inaction amounted to wilful abstention. (Para 10).
(d) Application to Facts
The Court held that the mutation notice constituted constructive notice. Had the respondents exercised ordinary diligence, they would have discovered that the mutation claim was founded upon the probate granted to the appellant. Therefore, limitation began running well before 2019. The plea that knowledge was acquired only in 2019 was rejected. (Para 11).
Held
The application for revocation of probate filed in 2022 was hopelessly barred by limitation under Art.137 Limitation Act, 1963. The judgment of the Division Bench was set aside and the order of the Single Judge dismissing the revocation application was restored. The appeal was allowed.
Ratio
Where notice of proceedings affecting property rights is served upon a person, wilful failure to inquire into the basis of such proceedings may constitute constructive notice; for purposes of Art.137 Limitation Act, limitation for seeking revocation of probate under S.263 ISA begins when such knowledge ought reasonably to have been acquired through due diligence.
Case Details
Citation: 2026 INSC 602
Decided on: 29 May 2026
Case Title: Dhiraj Dutta v. Anirban Sen & Ors.
Court: Supreme Court of India
Bench: Sanjay Karol, J.; Vipul M. Pancholi, J.