REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  1967     OF 2009 (Arising out of SLP (C) No.16110 of 2007)

Krishna Kumar Sharma  ..Appellant

Versus

Rajesh Kumar Sharma  ..Respondent

J U D G M E N T

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

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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

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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

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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.

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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.”

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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

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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).

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12. The appeal is allowed to the aforesaid extent.

………….……..........................J. (Dr. ARIJIT PASAYAT)

……………….………...............J. (ASOK KUMAR GANGULY)

New Delhi, March 27, 2009                                                            

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