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Issues: Whether an application for probate could be rejected as barred by limitation and whether a second probate application had to be treated as a fresh application not governed by the Limitation Act.
Analysis: An application for probate is not an application of the kind contemplated by the Limitation Act provisions dealing with ordinary applications under the Code of Civil Procedure. The reasoning applied in earlier authorities was that Article 178 of Schedule II was confined to applications under the Code and could not be extended by analogy to probate proceedings. Probate is of a different character, being in the nature of permission to perform a duty created by the will or recognition of a testamentary trust, so the right to apply is not defeated by lapse of time in the same way as ordinary civil applications. The second application was therefore required to be treated on its own footing as a fresh probate application, and the court below was not justified in imposing a procedural restriction that would indirectly attract limitation.
Conclusion: The rejection of the probate application on the ground of limitation was and the application ought to have been restored and decided on merits; the decision was in favour of the appellant.
Final Conclusion: Probate proceedings of this kind are not barred merely because an earlier application was dismissed, and the proper course is to entertain the renewed request and decide it according to law.
Ratio Decidendi: A probate application is not governed by the ordinary limitation provisions applicable to applications under the Code of Civil Procedure, and a renewed probate request must be treated as maintainable and decided on merits.
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