JUDGMENT
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by the Delhi High
Court which by the impugned order allowed the appeal filed by the
respondent.
3. Background facts in a nutshell are as follows:
Respondent, the propounder of the registered will dated 13th July,
1989 executed by his mother, has locked horns with his step brother,
Krishan Kumar Sharma, the appellant herein Smt. Sneh Prabha Sharma, the
testatrix, and her husband Ram Mohan Sharma were married twice.
Respondent is the son of testatrix and Ram Mohan Sharma. Appellant is the
son from the first wife of Ram Mohan Sharma. The respondent's case is
this that the will dated 13th July, 1989 was made by the above said testatrix
in sound disposing mind on 13th July, 1989 and it was got registered on 11th
September, 1989. Smt. Sneh Prabha Sharma died on 9th July, 1990. Except
the appellant, none of the other siblings of the appellant contested the
petition moved by the appellant under Section 276 of the Indian Succession
Act, 1925 (in short the `Act').
The basic question before the High Court was whether Article 137 of
the Indian Limitation Act, 1963 (in short the `Limitation Act') applies to the
facts of the present case. The High Court relied upon the judgments of
Delhi High Court in S.S. Lal v. Vishnu Mitter Govil [112 (2004) Delhi Law
Times 877 (DB)] and in Kanwal Malhotra v. State [125 (2005) Delhi Law
2
Times 281] to hold that Limitation Act has no application to proceedings
seeking for probate.
4. Learned counsel for the appellant submitted that the interpretation
placed by the High Court is not correct. The primary question that needs
reconsideration is whether Article 137 of the Limitation Act is applicable.
It appears that certain other aspects were considered by the High Court to
which reference shall be made subsequently.
5. In The Kerala State Electricity Board, Trivandrum v. T.P.
Kunhaliumma [1976 (4) SCC 634] it was inter alia observed as follows:
"18. The alteration of the division as well as the
change in the collocation of words in Article 137 of the
Limitation Act, 1963 compared with Article 181 of the
1908 Limitation Act shows that applications
contemplated under Article 137 are not applications
confined to the Code of Civil Procedure. In the 1908
Limitation Act there was no division between
applications in specified cases and other applications as
in the 1963 Limitation Act. The words "any other
application" under Article 137 cannot be said on the
principle of ejusdem generis to be applications under the
Civil Procedure Code other than those mentioned in Part
I of the third division. Any other application under
Article 137 would be petition or any application under
any Act. But it has to be an application to a court for the
reason that Sections 4 and 5 of the 1963 Limitation Act
speak of expiry of prescribed period when court is closed
and extension of prescribed period if applicant or the
appellant satisfies the court that he had sufficient cause
3
for not preferring the appeal or making the application
during such period.
22. The conclusion we reach is that Article 137 of
the 1963 Limitation Act will apply to any petition or
application filed under any Act to a civil court. With
respect we differ from the view taken by the two-judge
bench of this Court in Athani Municipal Council case
and hold that Article 137 of the 1963 Limitation Act is
not confined to applications contemplated by or under
the Code of Civil Procedure. The petition in the present
case was to the District Judge as a court. The petition
was one contemplated by the Telegraph Act for judicial
decision. The petition is an application falling within the
scope of Article 137 of the 1963 Limitation Act."
In terms of the aforesaid judgment any application to Civil Court under the
Act is covered by Article 137. The application is made in terms of Section
264 of the Act to the District Judge. Section 2(bb) of the Act defines the
District Judge to be Judge of Principal Civil Court.
6. Further in S.S. Rathore v. State of M.P. [1989(4) SCC 582] it was
inter-alia stated as follows:
"5. Appellant's counsel placed before us the
residuary Article 113 and had referred to a few decisions
of some High Courts where in a situation as here reliance
was placed on that article. It is unnecessary to refer to
those decisions as on the authority of the judgment of
this Court in the case of Pierce Leslie & Co. Ltd. v.
Violet Ouchterlony Wapshare it must be held that Article
4
113 of the Act of 1963, corresponding to Article 120 of
the old Act, is a general one and would apply to suits to
which no other article in the schedule applies."
7. Article 137 of the Limitation Act reads as follows:
"137. Description of application: Any other
application for which no period of limitation is
provided elsewhere in the Division.
Period of Limitation: Three Years
Time from which period begins to run:
When the right to apply accrues."
The crucial expression in the petition is "right to apply". In view of what
has been stated by this Court, Article 137 is clearly applicable to the petition
for grant of Letters of Administration. As rightly observed by the High
Court in such proceedings the application merely seeks recognition from the
Court to perform a duty because of the nature of the proceedings. It is a
continuing right. The Division Bench of the Delhi High Court referred to
several decisions. One of them was S. Krishnaswami and etc. etc. v. E.
5
Ramiah (AIR 1991 Madras 214). In para 17 of the said judgment it was
noted as follows:
"17. In a proceeding, or in other words, in an application
filed for grant of probate or letters of administration, no
right is asserted or claimed by the applicant. The
applicant only seeks recognition of the Court to perform
a duty. Probate or letter of Administration issued by a
competent Court is conclusive proof of the legal
character throughout the world. An assessment of the
relevant provisions of the Indian Succession Act, 1925
does not convey a meaning that by the Proceedings filed
for grant of probate or letters of administration, no rights
of the applicant are settled or secured in the legal sense.
The author of the testament has cast the duty with regard
to the administration of his estate, and the applicant for
probate or letters of administration only seeks the
permission of the Court to perform that duty. There is
only a seeking of recognition from the Court to perform
the duty. That duty is only moral and it is not legal.
There is no law which compels the applicant to file the
proceedings for probate or letters of administration. With
a view to discharge the moral duty, the applicant seeks
recognition from the Court to perform the duty. It will be
legitimate to conclude that the proceedings filed for
grant of probate or letters of administration is not an
action in law. Hence, it is very difficult to and it will not
be in order to construe the proceedings for grant of
probate or letters of administration as applications
coming within the meaning of an 'application' under Art.
137 of the Limitation Act, 1963."
6
8. 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's case (supra).
9. 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
7
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 form the date of he deceased's death.
(e) delay beyond 3 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".
10. These aspects were highlighted in Kunvarjeet Singh Khandpur v.
Kirandeep Kaur & Ors. (2008 (8) SCC 463).
11. Since other questions were involved we remit the matter to consider
the matter afresh in view of what has been stated in Kunvarjeet's case
(supra).
8
12. The appeal is allowed to the aforesaid extent.
.............................................J.
(Dr. ARIJIT PASAYAT)
...........................................J.
(ASOK KUMAR GANGULY)
New Delhi,
March 27, 2009
