Harakman Mahto vs General People of the Locality of Village

P.P. Bhatt, J.—The present appeal has been preferred under Section 299 of the Indian Succession Act, 1925 being aggrieved and dissatisfied with the judgment/order dated 24.8.2013 passed by the learned Judicial Commissioner-IV, Ranchi in L.A., Case No. 129 of 2012, whereby, the learned court below has dismissed the application for letters of administration as being barred by limitation. Learned counsel for the appellant submits that the appellant being a legatee applied for a letters of administration under Section 276 of the Indian Succession Act, 1925. It has been dismissed as it was barred by law of limitation, and hence, this appeal.

The testator Bhagat Mahto had expired on 22.3.1966 and executed a registered Will on 4.3.1966. The petition under Section 276 of the Succession Act for grant of letters of administration was filed after 56 years of the death of the testator. The learned court below held that the cause of action for filing of the present application of Letter of Administration arose within the three years from the date of its institution and apparently the testator has died 56 years back and therefore, the same is dismissed being barred by limitation.

It is further submitted that there is no time limit prescribed for filing an application for letters of administration and Article 137 of the Limitation Act also has no application. The application be treated as an application under Section 278 of the Indian Succession Act. It is also stated that cause of action for preferring an application for letter of administration does not arise on the death of the testator or within three years from the death of the testator, the same accrues when it become necessary to apply.

Since the instant miscellaneous appeal has been filed for its limited question of law and the respondents are the general people of the locality of the village, no fruitful purpose will be served for issuance of notice at this stage. The limited question of law which is involved in the present case, is with regard to question of limitation.

Learned counsel for the appellant submits that the learned court below has not properly appreciated the ratio laid down in the judgment delivered by the Hon''ble Apex Court in the case of Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur and Others, . By referring paragraph 15 of the said judgment, learned counsel for the appellant pointed out that no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made. It is lastly submitted that in view of the ratio laid down by the Hon''ble Apex Court in paragraph 15 of the above said judgment, the present appeal may be allowed and the case may be remitted back to the learned court below for its de novo consideration.

In view of the submission made by the learned counsel for the appellant, the present case is based upon the decision of the Hon''ble Apex Court, reported in Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur and Others, . Paragraph 15 of the said judgment reads as under;

"15. Similarly, reference was made to a decision of the Bombay High Court in Vasudev Daulatram Sadarangani Vs. Sajni Prem Lalwani, Para 16 reads as follows:

''16. Rejecting Mr. Dalpatrai''s contention, I summaries my conclusion 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 me 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 services 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 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''

Conclusion (b) is not correct while conclusion (C) is the correct position of law."

In view of the ratio laid down in the aforesaid judgment, the learned court below shall not dismiss the application on the ground of limitation. However, the execution of Will should be proved by me appellant.

In view of the above, let this matter be remitted back to the learned court below for its de novo consideration. With the aforesaid direction and observation, this appeal stands disposed of.