3 years is the limitation period to challenge the will through a declaration suit

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Shubham Budhiraja[1]





A filed a suit for declaration against B seeking will & codicil of their father to be null & void. The B filed an application under Order 7 Rule 11 seeking rejection of plaint on basis that plaint was barred by limitation. The Ld. Trial Court allowed the application but High Court reversed the findings. The Hon’ble Supreme Court allowed the application and held as under:[2]

 

1.     Article 58 would stand attracted which provides for a limitation period of three years to obtain any other declaration other than that mentioned under Articles 56 and 57. It provides that for such a declaration, the limitation is three years from the date when the right to sue first accrues.

 

2.     The use of the words “when the right to sue first accrues” as mentioned in Article 58 is very relevant and important. It categorically provides that the limitation of three years has to be counted from the date when the right to sue first accrues.

 

3.     So, according to the plaintiff’s case, the cause of action first arose on 04.02.2014 and, therefore, the limitation would end on 04.02.2017. However, even if the limitation is calculated from the date of knowledge of the Will and/or the Codicil, it would run from the first week of November, 2014 and would end in the first week of November, 2017. The suit admittedly was instituted on 21.11.2017; much beyond the first week of November, 2017 and as such is apparently barred by limitation, for which neither any defence is required to be looked into nor any evidence in support is needed to be adduced.

 

4.     It was ex-facie barred by limitation for which, no evidence was required to be adduced by the parties. The above issue is purely an issue of fact and in the admitted facts as per the plaint, allegations stand concluded for which no evidence is needed.

 

 

 

 


[1]Advocate, Delhi High Court [LLB, ACS, BCOM(H)], Budhirajalawchambers@gmail.com

[2] 2025 INSC 485

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