Judgment :- 1. This Appeal arises against the grant of Letters of Administration to the Will dated 31.7.1986 of one Dr. S. Gurubatham. 2. The First Respondent is the youngest, son of the deceased and was the Petitioner before the lower Court. He moved a Petition in PR.O.P.No.9 of 1996, on the file of the First Additional District Judge, Salem, under Section 278 r/w Section 234 of Indian Succession Act, 1925, towards proving a Will in common form and sought grant of Probate in his favour in respect of properties bequeathed to him by his father Late Dr. S. Gurubatham. The Respondents were the three daughters of the deceased Testator and three sons of a predeceased son of the Testator, who had died on 15.8.1994. The Will dated 3.6.1980 was a holographic Will, and had been registered on 8.7.1980. Under the Will, the First Respondent/Petitioner was given a hospital building which belonged to the Testator since he had practiced with the Testator and helped to establish the Gurubatham Eye Hospital. While one of the sisters was not granted any property under the Will, since the Testator had helped her in building a house, the other sisters were bequeathed house property which had belonged to the wife of the Testator, who had predeceased him. The elder son of the Testator did not obtain any benefit under the Will since the Will informed of his having been provided with a farm and house at Omalur, which had been sold by him. The Executor appointed under the Will predeceased the Testator. The three daughters of the Testator filed a Memo informing their consent to grant of probate in favour of the First Respondent/Petitioner. The Second Appellant herein filed a Counter informing the Will to be the outcome of undue influence and threat. The Appellants 1 and 3 herein adopted the same. 3. It was contended that the Testator was of advanced ‘age’ was suffering from diabetes, both his legs were amputated and that he was dependent upon the First Respondent/Petitioner for his day-to-day affairs, as his other children were away from Salem. The Appellants 1 and 3 herein adopted the same. 3. It was contended that the Testator was of advanced ‘age’ was suffering from diabetes, both his legs were amputated and that he was dependent upon the First Respondent/Petitioner for his day-to-day affairs, as his other children were away from Salem. As regards the Will informing of the property at Omalur having been given to the father of the Appellants/Respondents 4 to 6 and of his having sold the same, it was contended that the properties at Omalur were purchased by the father of the Appellants through disposal of his wife’s jewels and with his own funds. It was contended that the Testator had utilized the services of the father of the Appellants who had been a graduate in Agriculture, to convert vast extent of farm lands purchased by the Testator into garden lands at Shanthipuram and that the hospital bequeathed in favour of the First Respondent was put up through utilization of sale proceeds of the lands at Shanthipuram. 4. It was further contended that the eldest daughter of the Testator and her husband had decent earnings and had constructed a house out of their own funds. It was contended that since both the eldest son and eldest daughter were disinherited and the attesting witnesses were close relatives of the First Respondent/Petitioner, the Will was not free of doubt and therefore, Probate ought not to be granted. 5. By way of an additional Counter, the Appellants informed that the Petitioner had joined his sister, the Third Respondent herein in filing a Suit claiming a share of the house that had belonged to their mother/wife of the Testator, in O.S.No.715/1995 on the file of the Sub-Judge, Salem, and thus, the First Respondent/Petitioner had elected to avoid the Will. By way of reply to the Counter the First Respondent/Petitioner had informed that he was under the bona fide belief that the Will was only in respect of the Testator’s share and that the Testator could dispose only his property under the Will and as such he was not properly aware of the right/duties in respect of the Will. Before the lower Court, three witnesses were examined on behalf of the First Respondent/Petitioner and one witness on behalf of the Appellants/Respondents. The First Respondent/Petitioner marked 22 exhibits. On the Appellants’ side four exhibits were marked. Before the lower Court, three witnesses were examined on behalf of the First Respondent/Petitioner and one witness on behalf of the Appellants/Respondents. The First Respondent/Petitioner marked 22 exhibits. On the Appellants’ side four exhibits were marked. The lower Court had permitted the First Respondent/Petitioner to prove the Will in common form and granted Letters of Administration in his favour. Thus, this Appeal. 6. Heard Mr. P. Jagadeesan the learned Counsel appearing for the Appellants and Mr. C. Manishankar the learned Counsel appearing for the Respondents. 7. The primary contentions of the learned Counsel for the Appellants are three-fold: (i) The execution of the Will was shrouded in suspicion and could not be held to be voluntary. In support of this contention, the learned Counsel would contend that the Testator had been a chronic diabetic for forty years, had both his legs amputated and was totally dependent upon the First Respondent/Petitioner. It was taking advantage of such position that the First Respondent/Petitioner had obtained a Will favourable to him and had the same attested by persons closely related to his wife. As on the date of the Will, the Testator was a very aged man of 86 years, was very ill, was aware that as on such date, the heirs of his eldest predeceased son Francis had no properties and therefore, the circumstance of disinheriting them aroused suspicion. There was no evidence to show that the Testator had purchased any property for the benefit of the eldest son Francis, the father of the Appellants. There was a delay of as many as ten years in preferring the Petition for probate and there was no explanation provided therefore and this was an additional suspicious circumstance. He would also raise a contention that there was no pleading of the Will having been duly executed and submit that in circumstance where the First Respondent/Petitioner informed of having accompanied the Testator to the Registration Office, the failure to seek probate earlier, made due execution of the Will all the more suspicious. The lower Court had recorded a finding of there being undue influence by ignoring the suspicious circumstances. (ii) The Doctrine of Election as spelt out in Section 180 of the Indian Succession Act, 1925, stood attracted. The lower Court had recorded a finding of there being undue influence by ignoring the suspicious circumstances. (ii) The Doctrine of Election as spelt out in Section 180 of the Indian Succession Act, 1925, stood attracted. In filing the Suit in O.S.No.715 of 1995 seeking partition of property that had belonged to the wife of the Testator, the First Respondent/Petitioner had elected to act against the Will of the Testator granting such property to two of his daughters/sisters of the First Respondent/Petitioner and thus, he could not take the bequest of the hospital in his favour. (iii) The operation of Article 137 of Limitation Act which prescribed a period of three years to exercise a right stood attracted. As the Testator had died on 31.7.1986, the Application for grant of probate moved on 6.1.1996 was hopelessly out of time. 8. Learned Counsel placed reliance following decisions: 1. H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors. AIR 1959 SCJ 443, was relied upon toward, informing that the onus lay on the profounder of a Will and the presence of suspicious circumstances made the same very heavy. 2. Valliammal Achi v. Nagappa Chettiar & anr., AIR 1967 SC 1153 , was a case where on facts, election did not in any manner affect the rights of parties. 3. Ramachandra Marthandam v. Linga Vijayan & Ors., 2010 (4) CTC 385 , was a case wherein, attesting witnesses of the Will had not been examined even though available. 4. S. Nagarathinam v. S. Balakathiresan & 13 others, 1994 (1) LW 133 , is relied upon to show that in exercising election, a person cannot accept and reject, the same instrument. 5. N.S. Paramanandan v. K. Raju & anr., 1992 (2) LW 774 , was a case where a Will was sought to be proved after two aborted attempts and after a lapse of 22 years and wherein the knowledge of Plaintiff of execution of Will or that, of death of the Testators was not pleaded. 6. The propositions informed in Surendra Pal & Ors., v. Saraswati Arora & anr., AIR 1974 SC 1999 , in paragraph 7 is – “7. 6. The propositions informed in Surendra Pal & Ors., v. Saraswati Arora & anr., AIR 1974 SC 1999 , in paragraph 7 is – “7. The Propounder has to show that the Will was signed by the Testator, that he was at the relevant time in a sound disposing state of mind; that he understood the nature and effect of the dispositions; that he put his signature to the testament of his own free will; and that he has signed it in the presence of the two witnesses, who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But there may be cases in which the execution of the Will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the Testator is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the Will are not the result of the Testator’s free will and mind. In all such cases, where there may be legitimate suspicious circumstances, those must be reviewed and satisfactorily explained before the Will is accepted. Again is cases where the propounder has himself taken a prominent part in the execution of the Will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the Court that has to be satisfied, as such the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a reasonable man may, in the relevant circumstances of the case, entertain. (See H. Venkatachala Iyengar v. B.N. Thimmajamma, and Rani Purnima Devi. V. Kumar Khagendra Narayan Dev). In the latter case this Court, after referring to the principles stated in the former case emphasized that where there are suspicious circumstances the onus will be on the propounded to explain them to the satisfaction of the Court before the Will could be accepted as genuine; and where the caveator alleges undue influence, fraud and coercion the onus is on him to prove the same. It has been further pointed out that the suspicious circumstances, may be as to the genuineness of the signature of the Testator, the condition of the Testator’s mind, the dispositions made in the Will which may be unnatural on unfair or improbable when considered in the light of the relevant circumstances. If the caveator does not discharge the burden which rests upon him in establishing the circumstances which show that the Will had been obtained by fraud or undue influence, a Probate of the Will must necessarily be granted if it is established that the Testator had full testamentary capacity and had in fact executed it validly with a free will and mind. The observations of the Privy Council in Motibai Hormusjee Kanga v. Jamsetjee Hormusjee Kanga support the above proposition. Mr. Ameer Ali observed at p.33. “It is quite clear that the onus of establishing capacity lay on the Petitioner. It is also clear that if the caveator impugned the Will on the ground that it was obtained by the exercise of undue influence, excessive persuasion or moral coercion, it lay upon him to establish that case.” In the light of the what has been stated if the various requirements of a valid Will are established, then as observed by the Privy Council in Motibai Hormusjee Kangar’s case at p.33: “A man may act foolishly and even heartlessly; if he acts with full comprehension of what he is doing, the Court will not interfere with the exercise of his volition.” 7. Case of Sugan Bai v. Muniammal @ Dhanalakshmi & Ors., 1996 (2) MLJ 596 , is relied upon to show that disinheriting a natural heir was a suspicious circumstance which is to be explained. 8. J. Malarvizhi v. D. Shankar, 2010 (5) MLJ 432 , is a decision relied on when the right to set aside Probate or Letters of Administration arose under Section 137 Limitation Act. On facts it was found that parties seeking revocation had knowledge of earlier proceedings and that the right to sue arose on the date of grant of Letters of Administration. 9. On facts it was found that parties seeking revocation had knowledge of earlier proceedings and that the right to sue arose on the date of grant of Letters of Administration. 9. One other contention which merely needs to be mentioned is that after the amendment of Section 213 of the Indian Succession Act, 1925, by the Indian Succession (Amendment) Act, 2002, no Probate/Letters of Administration was necessary in respect or Wills of Indian Christians, the segment which the parties belonged to, and the grant of Probate would prevent the Appellants from tendering evidence in the Suit for partition. 10. To dispel the clouds of suspicious sought to be portrayed by the learned Counsel for the Appellants, the learned Counsel for the Respondents first would refer to the admission in the original Counter filed by the Appellants of the Will being in the hand of the Testator. He would state that it was settled law that a holographic Will would merit great credence. Ex.A18 was a handwritten Letter of the Testator dated 31.3.1979 and the same had been marked without objection. Therein, the reasons for making bequests as also denying the same to the eldest son and eldest daughter stand clearly explained. Ex.A21 was a Note prepared by the father of the Appellants on 1.3.1993 informing his views on the manner of dealing with the property which originally belonged to his mother/wife of the Testator. The same had marked without objection. Before the lower Court, P.W.3, one of the daughters of the Testator had deposed that one week after the death of her father, the Testator, she, the First Respondent/Petitioner and father of the Appellants, while at the house of another sister had found the Will in a safeguarded box, and that the elder brother Francis after reading the same handed over it to the First Respondent/Petitioner informing that the same would be useful only to him. She had further deposed that the First Respondent/Petitioner had forwarded copies of the Will to the other heirs of the Testator. She had spoken to the house in which she resided having been put up out of the funds belonging to the Testator and that the house of the Testator’s wife should go to the two younger daughters. 11. She had further deposed that the First Respondent/Petitioner had forwarded copies of the Will to the other heirs of the Testator. She had spoken to the house in which she resided having been put up out of the funds belonging to the Testator and that the house of the Testator’s wife should go to the two younger daughters. 11. A joint reading of such unchallenged evidence with the content of Ex.A21, which refers only to the dispute regarding the house which originally belonged to the wife of the Testator would go to show that the father of the Appellants was well aware of the Will and had not challenged the same. It is only the present Appellants, who were his heirs, who had made unwarranted allegations which find no support from the surrounding facts and circumstances. Towards informing that the Testator was not a frail and helpless as made out to be, the learned Counsel would refer to Ex.A17 which informs participation of the Testator in the Golden Jubilee Celebrations of the Moses Gnanabaranam Eye Hospital, at Coimbatore in the year 1984 and pointed out that it was R.W.1 before the lower Court i.e., one of the Appellants who had taken the Testator to Coimbatore, that too after the amputation of a leg. It is also pointed out that the Testator had lived for six years after the execution of the Will and if there had been any undue influence in the execution thereof, he would not have allowed the Will to be. The Will had been duly proved before the lower Court. As both the attestors of the Will were deceased, signature of one of them had been proved through P.W.1 the brother of one of them. Placing reliance upon the factual findings of the lower Court, learned Counsel would state that the so-called suspicious circumstances surrounding the Will stood duly dispelled. 12. Learned Counsel for the Respondents would inform the non-application of Section 180 of the Indian Succession Act, 1925, in the instant case. His submission is that to attract the application of the said Section, the bequest must be one which dealt with one’s own property as also the property belonging to the legatees. 12. Learned Counsel for the Respondents would inform the non-application of Section 180 of the Indian Succession Act, 1925, in the instant case. His submission is that to attract the application of the said Section, the bequest must be one which dealt with one’s own property as also the property belonging to the legatees. The bequest in favour should be of property that solely belonged to the Testator and such bequest must be accompanied by a bequest made by the Testator of property that belonged solely to the legatee. It is only in such circumstance that the legatee could be called upon to elect. In the instant case, while the bequest in favour of the First Respondent/Petitioner was in respect of property which solely belonged to the Testator, the bequest of the house property to the two younger daughters of the Testator was not that of property which belonged solely to the First Respondent/Petitioner. Upon the demise of the wife of the Testator, such house property had devolved both upon the Testator, the First Respondent/Petitioner as also the other heirs of the mother who are the elder son and three daughters of the Testator. 13. Learned Counsel would also touch upon Sections 187 to 189 of the Indian Succession Act and submit that even in a case where election was necessary and no election had been made by the Legatee within one year from the date of the death of the Testator, his representatives would have had to call upon him to elect under Section 189. The same had not been done in the instant case. 14. Learned Counsel would submit that even otherwise, as informed in the reply to the additional Counter, the First Respondent/Petitioner had chosen to elect to abide by the Will as he had sought to withdraw from the Suit O.S.No.715 of 1995. It was because of the death of the sister and the need to bring the legal representatives on record that such process had been delayed. However, has election in favour of the Will stood established? 15. The next contention is that mere filing of the Suit for partition could not be read as an act of election when the same had not been pursued to its due end. However, has election in favour of the Will stood established? 15. The next contention is that mere filing of the Suit for partition could not be read as an act of election when the same had not been pursued to its due end. On the question of applicability of Article 137 of the Limitation Act, learned Counsel would inform that time would run from the date on which the right to move an Application accrued. He would state that there had been no dispute whatsoever regards the Will of the Testator. It was uncontroverted evidence that the First Respondent/Petitioner had forwarded copies of the Will to all the legal heirs of the Testator and that there was no dispute regarding the same stood affirmed by the fact that Ex.A21, Memo prepared by the father of the Appellants, spoke only about the house property which had belonged to the mother. It was only in the year 1995 that the heirs of the elder brother Francis/the Appellants herein, had caused trouble in the possession of the house property leading to the filing of Suit for partition by the First Respondent/Petitioner and the sister. It only was at such instance that a danger of parties acting against the Will which had thus for been abided with arose, and therefore, the moving of the Petition for Probate on 06.01.1996 was within time. Learned Counsel would submit that the contentions now raised both on the applicability of Section 180 of the Indian Succession Act and that on Article 137 of the Limitation Act did not find a place in the pleadings nor had they been agitated before the lower Court. 16. To appreciate the rival contentions, this Court may first inform the findings of the lower Court regarding due execution of the Will. The learned I Additional District Judge, Salem rejected the contention of the Respondents 4 to 6 that P.W.1 was not on close terms with his brother Raja Savarirayan, who was one of the attesting witnesses and hence, his evidence regarding the genuineness of the signature of his brother should not be accepted and held that P.W.1 being the brother, would have had many opportunities to see this brother’s signature. Taking into consideration the deposition of P.W.2, K.G. Gurubatham, that S. Gurubatham was a chronic diabetic patient for 40 to 42 years prior to is death and also Ex.A4, A5 and Ex.A6, the learned I Additional District Judge, Salem was pleased to hold that the first amputation of a leg of S. Gurubatham took place only in April 1981 (after the registration of the Will) and that the contention of Respondents 4 to 6/Petitioners 1 to 3 herein that late Dr. S. Gurubatham was in an amputated state at the time of execution of Will on 03.06.1980 and the Will was a product of undue influence and coercion and hence involuntary, cannot be accepted. On a perusal of letters viz. Ex.A7 to A10, A12 to A14 and A-18-Memorandum, A17 and A19, it was found that late Dr. S. Gurubatham was active before and after the operation, he was not dependent upon anyone for his day to day living and was not under the control of anybody when he executed the Will. Further, R.W.1 had deposed that Exs.A7, A8-Letters and Ex.A18-Memorandum was a handwritten by his grandfather Dr. S. Gurubatham. Though it was contended by Respondents 4 to 6, that their father Francis bought lands in Omalur only by selling his wife’s jewels, the learned I Additional District Judge, Salem, rejected such contention since there was no pleadings there regards as admitted by RW1 and there was no reliable evidence to prove the same. 17. This Court finds itself in total agreement with the reasoning of the lower Court. The same only stands fortified by the submissions of the learned Counsel for the Respondents recorded hereinabove. 18. This Court is convinced that Section 180 of Indian Succession Act, 1925, will find no application in the facts of the case. In Valliammai Achi v. Nagappa Chettiar and others, AIR 1967 SC 1153 , it has been held as follows: “9. It is urged on behalf of the Appellant that Section 180 would apply to the facts of the present case for the property willed by Pallaniappa’s father was not his which he could will away as it was joint family property in which Pallaniappa who was the residuary legatee had also equal interest. Therefore, Pallaniappa had either to confirm had the disposition or dissent from it, and his conduct showed that, he had confirmed it for he took out probate. Therefore, Pallaniappa had either to confirm had the disposition or dissent from it, and his conduct showed that, he had confirmed it for he took out probate. Therefore, it must be held that after probate was taken out the residue became the absolute property of Pallaniappa and lost its character as joint Hindu Family Property. 10. Now it is clear from Section 180 that after the legatee elects to dissent from the Will he must give up any benefits provided for him by the Will. This shows that election under Section 180 would only arise where the legatee derives some benefit from the Will to which he would not be entitled except for the Will. In such a case he has to elect whether to confirm the Will or dissent from it. But where there is no question of the legatee deriving any benefit from the Will to which he would not be entitled except for the will, the fact that he confirms the Will and accepts what the Will provides would not amount to election, for he would have in any case got what the Will gave him. Thus, election only arises where the legatee had to choose between his own property which might have been willed away to somebody else and the property which belongs to the Testator and which the Testator has given to the legatee by the Will. The matter is brought out in Halabury’s Laws of England, Third Edition, Vol.14, at p.588, para 1091 in the following words: Where a Testator by his Will purports to give property to A which in fact belongs To B and at the same time out of his own property confers benefits on B…in such circumstances … B is not allowed to take the full benefit given him by the Will unless he is prepared to carry into effect the whole of the Testator’s dispositions. He is accordingly put to his election to take either under the instrument or against it. He is accordingly put to his election to take either under the instrument or against it. If he elects to take under the Will he is bound and may be ordered to convey his own property to A; if he elects to take against the Will and to keep his own property, and so disappoints A, then he cannot take any benefits under the Will without compensating A out of such benefits to the extent of the value of the property of which A is disappointed.” 11. Following this principle the High Court held that as the property which the Will gave to Pallaniappa would in any case have come to him as a member of the joint family, there was no be question of election even by Pallaniappa in this case. This view appears to us to be correct. 19. In (Vemulapalli) Ramakotayya v. (Gutha) Viraraghavayya, AIR 1929 Mad, 502, this Court has observed as follows: “The next ground on which it is suggested that the Plaintiff may be put out of Court is on the Doctrine of Election. That well known equitable doctrine is stated in the leading case of Streatfield v. Streatfield decided in 1735 and most conveniently reported in I White and Tudor 440, and I cannot summarize it better than in the words of the learned editors in their notes to that case which begin at the bottom of P.444. They say this: Election is the obligation imposed upon a party by Courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both. Every case of election, therefore, pre-supposes a plurality of gifts or rights, with an intention, express or implied, of the party who has a right to control one or both that one should be a substitute for the other. The party who is to take has a choice, but he cannot enjoy the benefit of both.” 5. The same principle is often put in another form that a person cannot approbate and reprobate the same transaction. In this case that doctrine can have no application for the simple reason that no benefit was taken by this Plaintiff of any kind, and that his approbation was a mere expression of intention which had no further consequences.” 20. The same principle is often put in another form that a person cannot approbate and reprobate the same transaction. In this case that doctrine can have no application for the simple reason that no benefit was taken by this Plaintiff of any kind, and that his approbation was a mere expression of intention which had no further consequences.” 20. The same view stands expressed in the decision of this Court in P.A.T. Subbaraya Pillai v. Vaheesan, Minor and Others, AIR 1963 Mad. 405 : “9. In another view also, we must hold that the Doctrine of Election would not apply to this case. Repudiation of a document must necessarily mean successful reputation. It is true that, by the Written Statement filed on behalf of the present First Respondent by his guardian-ad-litem in the prior litigation, the capacity of Thillainayagam to execute a Will was denied. That was based upon the supposition that Thillainayagam was undivided from his two sons on the date of his death. The effect of a repudiation contained in a pleading in a Suit must conform to the result of the litigation. If this plea had been accepted by the Courts on the prior occasion and a decree had been passed on the basis that Thillainayagam was incompetent to make a Will, it could be said, with some force, that the present First Respondent, Vaheesan, had successfully repudiated the Will. But his assertion that Thillainayagam was incompetent to make a Will was not upheld by this Court and consequently, the repudiation had no effect.” 21. The decision relied upon by the learned Counsel for the Appellants on the applicability of Article 137 really does not serve the Appellant’s case. Learned Counsel places reliance upon paragraphs 15 to 17 of the Judgment reported in Kunvarjeet Singh Khandpur v. Kirandeep Kaur and others, 2008 (2) CTC 850, which reads as follows: “15. Though the nature of the Petition has been rightly described by the High Court, it was not correct in observing that the Application for grant of Probate or Letters of Administration is not covered by Article 137 of the Limitation Act. Same is not correct in view of what has been stated in The Kerala State Electricity Board, Trivandrum v. T.P. Kunhalimma, 1976 (4) SCC 634 . 16. Same is not correct in view of what has been stated in The Kerala State Electricity Board, Trivandrum v. T.P. Kunhalimma, 1976 (4) SCC 634 . 16. Similarly reference was made to a decision of the Bombay High Court’s case in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani, AIR 1983 Bom. 268 . Para 16 reads as follows: “16. Rejecting Mr. Dalapatrai’s contention, I summarise my conclusions thus: (a) Under the Limitation Act no period is advisedly prescribed within which an Application for Probate, Letters of Administration or succession certificate must be made; (b) the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted; (c) Such an Application is for the Court’s permission to perform a legal duty created by a Will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed; (d) the right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceased’s death; (e) delay beyond three years after the deceased’s death would arouse suspicion and greater the delay, greater would be the suspicion; (f) such delay must be explained, but cannot be equated with the absolute bar of limitation; and (g) once execution and attestation are proved, suspicion of delay no longer operates”. 17. The conclusion ‘b’ is not correct while the conclusion ‘c’ is the correct position of law.” 22. Learned Counsel would contend that the right to apply necessarily would accrue on the date of the death i.e. in this case on 31.07.1986 and therefore, the Application for Probate beyond the period of three years would not lie. 17. The conclusion ‘b’ is not correct while the conclusion ‘c’ is the correct position of law.” 22. Learned Counsel would contend that the right to apply necessarily would accrue on the date of the death i.e. in this case on 31.07.1986 and therefore, the Application for Probate beyond the period of three years would not lie. Such argument misses that which is informed in Clause (c) viz., such an Application is for the Court’s permission to perform a legal duty created by a Will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed. 23. In the instant case, this Court finds truth in the submissions made on behalf of the Respondents that the Will of the Testator was abided with by all the legal heirs and that a dispute between the family members arose only in the year 1995, thereby necessitating the Petition for Probate. This Court, would hold that such was the occasion to exercise the continuous right spoken of in the decision relied upon. 24. Both on the question of fact and law herein above discussed, this Court would hold in favour of the Respondents. Though this Court has not been addressed on Section 185 of the Indian Succession Act, 1925, we would find the same applicable in this case. Section 185 of the Indian Succession Act, reads as follows: “Section 185. Person taking in individual capacity under Will may in other character elect to take in opposition. – A person who in his individual capacity takes a benefit under a Will may, in another character, elect to take in opposition to the Will.” 25. In Rajamannar & Anr. V. Venkatakrishnayya & anr., ILR 25 Mad, 361, a Division Bench of this Court, on consideration of surrounding fact, found a bequest made, to be a legacy and not a debt payable to the beneficiary. Therein too, a question of estoppel from claiming a legacy under the Will was raised. The same was dealt with as follows: “……. V. Venkatakrishnayya & anr., ILR 25 Mad, 361, a Division Bench of this Court, on consideration of surrounding fact, found a bequest made, to be a legacy and not a debt payable to the beneficiary. Therein too, a question of estoppel from claiming a legacy under the Will was raised. The same was dealt with as follows: “……. The last contention is that the Plaintiff is estopped from claiming the legacy under the Will as he has disputed the validity of the Will, and has elected to take the Rs.10,000 as a debt due to himself, and not a legacy. What happened was that in a Suit brought by a brother of the Plaintiff claiming his share in the Testator’s estate as family property the Plaintiff supported his brother and also claimed a share. It was then decided that the property was the sole property of the deceased, and that neither Plaintiff nor his brother had a right to share therein. We do not see how the Plaintiff’s right to the legacy is affected thereby. Having had to bow to the decision that he had no independent right in the Testator’s property, he now seeks that he may recover what the Testator gave him out of that property. There is no estoppel. And as to the alleged election, if he had agreed to accept the money as in repayment of a debt, and had actually so received it, he could not, of course, claim the same amount once again as a legacy. Having, however, failed to obtain it as a debt he is entitled to get it as a legacy.” 26. Using the above observations as a guidelines, this Court finds that, even the dismissal of the Suit filed by the Respondent and his sister seeking partition of what was his mother’s estate would not have deprived him of taking his legacy under the Will of his father. The Suit for partition is one in his capacity as a legal heir of his mother and cannot have any bearing on his rights as legatee under his father’s Will. Accordingly, the Civil Miscellaneous Appeal shall stand dismissed. Consequently, connected Miscellaneous Petitions are closed. No costs.