Applicability of article 137- prior to 2008
Rajan Kaushal
(Querist) 06 November 2012
This query is : Resolved
The possition of Applicability of Article 137 of Limitation Act was settled in view of S.S. Lal case of DHC till 2008 when the Apex Court in the case of Kunvarjeet Singh Khandpur Vs.Kirandeep Kaur and Ors clarified that Article 137 of Limitation Act applies on the application for grant of Letter of Prabate /Administration. Since in Delhi no probate is necessary what would be to position on the facts of the following case.
1. A registered Will was executed in 1979 by giving his wife only right to live in the suit property but bequesthing the same to the propounder in exclusion of all others.
2. The testator died in 1981. His wife was all alone living in the property.
3. The propounder filed the Will with L&DO for nutation.
4. Three out of five other legal heirs (Sister of the propounder)consented to the execution and validity of the Will by way of affidavit and No objections.
5. Two other legal heirs(Mother & Brother of propounder) preferred a civil suit in 1981 for declation and permanent injunction seeking Will to be decalred Nul & Void and for mutation of the property of Delhi in their names. They obtained stay of mutation in the name of the propounder.
6. The petitioners delayed the P.E. for about 13 years and then on legal advise the propounder filed Application for Probate.
7. In 1995 the petitioners in civil suit made a statement in the suit through lawyer that since Probate application has been filed, the decision of the same would be binding on them.
8. Still in 1999, the mother filed an application under O7 R 11 that the petition of Probate in barred by time in view of Pamela manmohan Singh case of DHC.
9. The application was dismissed but an issue was framed on time barring.
10. A revision was preferred againt the order of dismissal inthe year 2000.
11. In the mean time the mother and the propounder died.
12. In 2005 the revision was dismissed on the basis of law settled in the case of S.S. Lal by division bench of DHC.
13. In 2008 the second plaintiff in the civil suit also died.
14. The civil suit was dismissed as abated in 2010 as none of the legal heirs joined the petition.
15. In 2008 the Apex Court in the case of Kunvarjeet Singh Khandpur Vs.Kirandeep Kaur and Ors held that Article 137 of Limitation Act applies on the application for grant of Letter of Prabate /Administration.
16. In 2011 within three years from he date of judgement an application under section 5/14 of Limitation Act was moved on behalf of the propounder for condonation of delay if any in filing the probate petiion.
Note: The possession of the entire property is now with a third party who obtained the possession in 1995/1996 and fabricated certain documents of purchase of 5/6 shares despite the status quo orders of 1994 passed by the Ld. DJ in Probate case. He also joined probate petiton in 2006 by making false statement and he is the only contesting party.
Now the queries are:
1. Whether the petition is time barred?
2. If yes, if Will stands proved as per section 63(c) then whether the delay of 13 years in filing probate from date of dispute on Will would be material ?
3. Whether such delay is condoneble in the light of the facts that in Delhi Probate is not necessary and at the time when the application was made the law of the DHC and other high courts was such that no time was prescribed for application for grant of probate and only the suspicion an in the present case Will was presented before the L&DO in 1981 itself and the issue "Whether the Will was validly executed" was sub-judice since 1982 in the civil suit being defended by the propounder?
4. Whether applicability of Article 137 of Limitation Act on the application for grant of Letter of Prabate /Administration as held by the Apex Court in the case of Kunvarjeet Singh Khandpur Vs.Kirandeep Kaur and Ors would be prospective or retrospective?
5. Since the civil suit stands dismissed in favour of the propounder, what is the legal right / ownership of the propounder?
Please let me know if any further detail is required of the case and please advise.
J K Agrawal
(Expert) 07 November 2012
I would like to answer Q 4 only.
The judgment of the SC is neither retrospective nor prospective it explains the legal position only.
It does not say that the article 137 is applicable strictly. rather it says that an application can be filed at any time and up to exact execution of will. it explains that inordinate delay causes doubt only.
