In Re: Estate of Late Shri Gurcharan Dass Puri

J.V. Gupta, J.—This is a petition under Secs. 218, 279 and 300 of the Indian Succession Act, (hereinafter called the Act) for the grant of letters of administration for the administration of the estate of late Shri Gurcharan Dass Puri, (Shri G. D. Puri, for short). Shri G. D. Puri died on

Nov. 27, 1963, leaving behind his widow Shrimati Sewa Devi, one son Shri Amrit Sagar Puri (hereinafter referred to as Shri A. S. Puri) and six daughters, viz., Mrs. Lily Soni; Mrs. Pushpa Kochhar; Mrs. Santosh Mehra; Mrs. Usha Duggal; Mrs. Prem Kochhar and Mrs. Meena Roy. He died intestate. The present petition for the grant of the letters of administration has been filed on May 4, 1984, i.e., after about twenty years of the death of Shri G. D. Puri. In the written statement filed on behalf of Shri A. S. Puri; Mrs. Lily Soni and Mrs. Santosh Mehra, certain preliminary objections were raised in regard to the limitation and the maintainability of the petition as such. According to them, the petition was mala fide to grab the property to which the petitioners had no right after the death of Shri G. D. Puri, After his death, a family arrangement was arrived at on

Dec. 22, 1963, by which it was decided by all his heirs that the entire property left by the deceased would vest only in Shri A. S. Puri and Shrimati Sewa Devi Puri, the widow and that the daughters would have no interest therein. The said family arrangement was in accordance with the last wishes of Shri G. D. Puri, as dictated by him to Mrs. Meena Roy in the presence of Shrimati Sewa Devi Puri and Mrs. Usha Duggal before his death on Nov. 27, 1963. Thus, the succession was complete on that date and that there was no property left for administration. However, in the replication filed on behalf of the petitioners, those allegations were denied. It was denied that the alleged family arrangement was in accordance with the last wishes of Shri G. D. Puri. The document, if any, was not definitely a will in accordance with the provisions of S. 63 of the Act. It was also denied that the succession opened on the date of death of Shri G. D. Puri and became complete then and that there was no property left thereafter for administration. On the question of limitation, it was pleaded that Art. 137 of the Limitation Act did not apply to the petitions for the grant of letters of administration under the Act. The petitioners also filed a copy of the agreement, along with Annexure "A" with the replication.

Under one of the clauses of the said agreement, Shri A. S. Puri, party No. 3 thereto, was to bear seventy per cent, of the cost of obtaining succession certificate or the letters of administration. On these pleadings of the parties, the following preliminary issues were framed by this Court on Dec. 4, 1984:

Whether the application for obtaining the letters of administration as such is maintainable?

If so, whether the application is within time?

The main controversy between the parties is as to whether the petition for obtaining the letters of administration is within time or not. According to the learned counsel for the petitioners, the Limitation Act, 1963, as such did not apply to such petitions under the Act and, therefore, the present petition could not be held to be barred by time. In support of the contention, the learned counsel relied upon Ramanand Thakur Vs. Parmanand Thakur, ; Kalinath Chatterjee Vs. Nagendra Nath Chatterjee, and Gnanamuthu Upadesi v. Vana Koilpillai Nadan, ILR (1894) 17 Mad 379. On the other hand, Shri D. S. Nehra counsel for the respondents, contended that it was Art. 137 of the Limitation Act, 1963, which governed such petitions and that the limitation provided thereunder was three years when the right to apply accrues. According to the learned counsel, the right to apply accrued to the petitioners on the death of Shri G. D. Puri on Nov. 27, 1963. Even if for the sake of arguments, the running of limitation be taken from the agreement annexed to Annexure "A", even then the present petition filed on May 4, 1984, was clearly barred by time. In support of the contention, the learned counsel relied upon The Kerala State Electricity Board, Trivandrum Vs. T.P. Kunhaliumma, and Gurdev Ram v. Food Corporation of India (1983) 85 Pun LR 410. According to the learned counsel, Art. 137 of the Limitation Act, 1963 was applicable to all kinds of applications including those filed under any Act.

After hearing the learned counsel for the parties on the question of limitation and going through the case law cited at the bar. I am of the considered opinion that Art. 137 of the Limitation Act, 1963, is applicable to all the applications filed under any statute. According to the Supreme Court in T. P. Kunhaliumma's case (supra), the changed definition of the words, "applicant" and "application" contained in Secs. 2(a) and 2(b) of the Limitation Act, 1963, indicates the object of the Limitation Act to include petitions, original or otherwise, under special laws. Following the above said judgment of the Supreme Court, this Court also in Gurde v. Ram's case (supra) has held that Art. 137 of the Limitation Act, 1963 is not confined to applications contemplated by or under the Code of Civil Procedure, but is applicable to applications under any Act filed in a Civil

Court. Thus, the authorities relied upon on behalf of the petitioners are clearly distinguishable and are not applicable to the facts of the present case.

In Ramanand Thakur Vs. Parmanand Thakur, the application was filed for the grant of probate of a will. In that context, it was observed therein that in the case of an application for grant of probate or letters of administration, it is difficult to find out as to when the right to apply accrues and unless that date can be fixed, there is no question of starting of the period of limitation. The right to apply for a probate accrues from day to day so long as the will remains unprobated. In other words, the right to apply accrues every day and the cause of action for an application for probate arises every moment so long as the will remains unprobated and, therefore, for such an application there is no period of limitation. As a matter of fact, it appears that these observations were made by the Patna High Court in the said case with respect to the right to apply for the grant of probate of a will. Stress was laid therein that in the case of a probate, the right to apply for making the application accrues from day to day so long as the will remains unprobated and, therefore, the question of the applicability of Art. 137 of the Limitation Act, 1963 to such a case did not arise.

Similar was the position in Kalinath Chatterjee Vs. Nagendra Nath Chatterjee, , wherein it was held by the Calcutta High Court that Art. 181 of the Limitation Act, 1908, did not apply to an application for the grant of a probate. It was also held that applying the doctrine of ejusdem generic the application which was contemplated in Art. 181 under the Limitation Act, was confined to the type of applications under the Code of Civil Procedure. In the above said case, reference was also made by the Calcutta High Court to the judgment of the Madras High Court in Gnanamuthu Upadesi's case ILR (1894) Mad 379) (supra) wherein it was observed that the reason for the exemption of applications for probate from the operation of the Limitation Act probably is that the application for probate is in the nature of an application for permission to perform a duty created by a will or for recognition as a testamentary trustee, and the right to apply continues so long as the object of the trust exists or any part of the trust, if really created, remains to be executed. Thus, from the said observations, it is quite evident that the application for obtaining the probate of a will stands altogether on a different footing than the application for obtaining the letters of administration as such without any probate. In these circumstances, I am of the considered opinion that Art. 137 of the Limitation Act, 1963, governs the petition in the present case and that the right to apply for obtaining the letters of administration accrued on the death of Shri G. D. Puri, whose estate is in question on Nov. 23, 1963. In any case even if it be assumed for the sake of arguments that there was any agreement between the parties as annexed to Annexure "A" to the replication, even then the present petition filed on May 4, 1984, was clearly barred by time.

The other controversy involved in this petition is, whether the application for the grant of the letters of administration as such without obtaining any probate or succession certificate is maintainable or not.

The learned counsel for the respondents cited, In the goods of Nursing Chunder Bysack, (1899) 3 Cal WN 635; Lekshmi Narain Chatterjee v. Nanda Rani Debi, (1909) 3 Ind Cas 287; Lalit Chandra Chowdhury v. Baikuntha Nath Chowdhury, (1910) 5 Ind Cas 395; Chandi Charan Mandal v. Banke Behari Mandal, (1906) 10 Cal WN 432, Prosonno Kumari Debi v. Ram Chandra Singha, (1912) 17 Ind Cas 155 and Hajira Khatoon v. Saiyad Mustafa Husain, AIR 1941 Oudh 474, and contended that the present application was misconceived and, thus, not maintainable and that it was a device to avoid the filing of a regular suit. Besides, argued the learned counsel, there was no allegation in the petition that there was any estate of deceased Shri G. D. Puri which remained without administration. On the other hand, the learned counsel for the petitioners, referred to the various provisions of the Act and contended that the instant petition was maintainable.

According to the averments made in the petition, Shri G. D. Puri died intestate. Shrimati Pushpa Kochhar, petitioner No. 1, claimed the administration of his estate as his daughter and a share in the distribution of the estate of the deceased Shri G. D. Puri, under the Act. According to her, she was entitled to apply for the letters of administration under S. 218 of the Act.

Section 218 of the Act provides as follows-

(1) If the deceased has died intestate and was a Hindu, Muhammadan, Buddist, Sikh or Jaina or an exempted person, administration of his estate may be granted to any person who, according to the rules for the distribution of the estate applicable in the case of such deceased, would be entitled to the whole or any part of such deceased's estate.

(2) When several such persons apply for such administration, it shall be in the discretion of the Court to grant it to any one or more of them.

(3) When no such person applies, it may be granted to a creditor of the deceased.

Under the said provisions, what is provided is the person to whom the administration of the estate may be granted. "Administrator", is defined under Sec. 2(a) of the Act. Thereunder, it means a person appointed by competent authority to administer the estate of a deceased person when there is no executor. "Executor", has been defined under Sec. 2(c) of the Act, according to which it means a person to whom the execution of the last will of a deceased person is, by the testator's appointment, confided. The said provisions are of no help for determining the rights of the petitioners because no person has been appointed as the administrator by the competent authority to administer the estate of Shri G. D. Puri, deceased, so far. In Hajira Khatoon's case (supra), it was held that where there is no estate which stands in need of administration, no suggestion that any creditors have to be paid or any debts due to the estate have to be collected and an application for letters of administration is a transparent device to secure from the Probate Court a decision upon a contested question of title to the estate there is no occasion for the grant of letters of administration. The proper course is to obtain an adjudication of the rights in a regular suit properly framed for the purpose. Somewhat similar is the situation in the present case. Disputed questions of title are involved in the instant case to the estate of Shri G. D. Puri, deceased. Without getting that dispute settled by a regular suit, the petitioners have sought this device of filing the petition for the grant of the letters of administration in this Court. In Probate Case No. 4 of 1980 (In the goods of R. B. Gopal Dass, deceased, son of late R. B. Saran Das) decided on Dec. 11, 1981, it was observed by this Court that so far as the immovable property was concerned, no letters of administration could possibly be required for their administration as the same came to vest in the legatees immediately on the death of the testator and that all of them had a right to jointly manage and enjoy its fruits. It was also observed therein that from a perusal of the petition, it would be clear that no averment has been made that the estate left by the testator needed any administrator and if so, in what manner. No case, therefore, had been made out even in the petition for the grant of the letters of administration. Similar is the position as regards the present case. There are no such averments in the application which would show that the estate left by Shri G. D. Puri, deceased, needed any administration and if so. in what manner. Certain identical observations were made in Lalit Chandra Chowdhury's case (1910 (5) Ind Cas 395) (Supra), wherein it was observed that it was evident that the real object of this litigation was not to administer the estate of Harish (for that, as we have mentioned, must have been administered already) but to obtain a declaration of heirship so as to fortify the successful party in any regular suit that may hereafter be instituted. We cannot permit such a course to be adopted, or to enlarge the scope of the Probate and Administration Act. It was, therefore, held therein that the application was incompetent and misconceived.

Section 214 of the Act inter alia provides that no Court shall pass a decree against a debtor of a deceased person for payment of his debts to a person claiming on succession to be entitled to the estate of the deceased person or to any part thereof or proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt except on the production, by the person so claiming of a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased. Thus, it is evident that letters of administration are required to be obtained for the purposes of getting the payment of debts etc. of the deceased. No such allegations have been made in the present petition. Present is a clear case where there is a serious dispute as to the title to the property left by Shri

G. D. Puri, deceased and, therefore, the present petition for the grant of the letters of administration as such is wholly misconceived. The petitioners may seek their remedy, if any, in a competent Court of law in accordance with law. The present application is no substitute for the said remedy.

In view of these findings, this probate petition fails and is dismissed with costs.