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CASE NO.: Appeal (civil)  2464 of 2008

PETITIONER: Kunvarjeet Singh  Khandpur

RESPONDENT: Kirandeep Kaur & Ors

DATE OF JUDGMENT: 03/04/2008

BENCH: Dr. ARIJIT PASAYAT & P.SATHASIVAM

JUDGMENT: J U D G M E N T REPORTABLE

CIVIL APPEAL NO  2464    of 2008 (Arising out of SLP(C) No. 12488/2006)

Dr. ARIJIT PASAYAT, J.  

1.      Leave granted.  2.      Challenge in this appeal is to the judgment of a learned  Single Judge of the Delhi High Court dismissing the Civil  Revision Petition filed by the appellant.  By the impugned  order the view expressed by learned Additional District Judge  deciding a preliminary issue was upheld.  Learned Additional  District Judge had held that the petition for grant of Letters of  Administration of Will dated 9.9.1991 purportedly executed by  late Sh. Mohinder Singh Khandpur was not barred by  limitation and was maintainable.  3.      The factual position needs to be noted in a nutshell as an  interesting question of law is involved for the resolution of  which factual details are not relevant.  4.      Appellant’s stand all through was that the testator-  Mohinder Singh Khandpur has expired on 5.10.1995 and the  petition under Section 278 of the Indian Succession Act, 1925  (in short the ’Act’) for grant of Letters of Administration was  filed on 7.8.2002, and therefore,  the same was barred by  limitation. Learned Additional District Judge after referring to  Section 232 of the Act held that the cause of action in favour  of the respondent Nos. 1 to 3 had arisen only when the  Probate Petition No. 22 of 1996 filed by Ms. Nirmal Jeet Kaur- respondent No. 5 was withdrawn on 9.8.1999 and therefore  the Petition for grant of Letters of Administration filed on  7.8.2002 was filed within three years and therefore was within  time. 5.      The order was challenged before the High Court.  Appellant’s stand was that Article 137 of the Limitation Act,  1963 (in short ’Limitation Act’) had application. It was  submitted that Article 137 of the Limitation Act has clear  application and the application for grant of letters of  Administration was filed beyond the speculated time.   6.       The High Court observed that Article 137 of the  Limitation Act does not apply to proceedings or grant of  Probate/Letters of Administration and therefore the view of the  learned Additional District Judge was correct.  Reliance was  placed on a Division Bench of the Delhi High Court in the case  of S.S. Lal v. Vishnu Mittal Goel [112 (2004)DLT 877] 7.      The High Court noted that there was no dispute that  Mrs. Nirmal Jeet Kaur had filed a Probate Petition in the court  of District Judge which was numbered as Probate Case No. 22

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of 1996 for grant of Probate in respect of will dated 9.9.1991  after the death of Mohinder Singh Khandpur.  The said  petition was withdrawn on 9.8.1999.  An application was filed  by the present respondent Nos. 1 to 3 for being transposed as  applicants  in the application but the said application was  dismissed with right and liberty granted to the present  respondent nos. 1 to 3 to initiate appropriate proceedings. 8.      In support of the appeal, learned counsel for the  appellant submitted that the High Court’s view that Article  137 of the Limitation Act was not applicable is incorrect.   It is  submitted that right to apply in terms of Article 137 accrued  when there was a dispute about genuineness of the Will.    Therefore it was submitted that the view of the High Court is  clearly unsustainable. 9.      On the other hand, learned counsel for the  respondents submitted that the right to apply for grant of  Letters of Administrations is a continuing right and the  starting point is the happening of an event.  In the instant  case, after the petition for grant of probate was withdrawn  the event arose. Further while permitting withdrawal,  liberty was granted to the present respondent nos. 1 to 3  to initiate appropriate  proceedings. 10.     Two questions need to be addressed in this appeal.   Firstly, about the applicability of Article 137 of the  Limitation Act and secondly even if it is applicable  whether the petition was within time. 11.     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 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 case2 and hold that  Article 137 of the 1963 Limitation Act is not  confined to applications contemplated by or

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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."

12.     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.     13.     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 Wapshare3 it must be held  that Article 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."

14.     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. 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

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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."

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’s case (supra). 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 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,

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suspicion of delay no longer operates".

17.     The conclusion ’b’ is not correct while the  conclusion ’c’ is the correct position of law.   18.     In view of the factual scenario, the right to apply  actually arose on 9.8.1999 when the proceedings were  withdrawn by Smt. Nirmal Jeet Kaur.  Since the petition  was filed within three years, the same was within time  and therefore the appeal is without merit, deserves  dismissal, which we direct but in the circumstances  without any order as to costs.