J. Meera Bai & Others vs T. Venugopal & Others

This Original Petition No.459 of 2017 is filed by the petitioners therein, who are the sons of the deceased testators T.Radhakrishna Naidu and Adhi Lakshmi Ammal. The four daughters and two other sons of the testators have been impleded as the respondents in the said Original Petition. The respondents 1 and 2 being two of the daughters have filed the above application seeking rejection of the Original Petition solely on the ground that the Original Petition is barred by limitation.

The said Application is resisted by the petitioners in the main Original Petition, contending that the main Original Petition cannot be rejected on the ground of limitation, in view of the Division Bench judgment of this Court in S.Vatsala v. K.S.Mohan & Others, reported in 2016 (1) LW 577.

I have heard Mr.S.R.Raghunathan, learned counsel appearing for the applicants and Mr.S.William, learned counsel appearing for the respondents.

Mr.S.R.Raghunathan, learned counsel appearing for the applicants would strenuously contend that the Original Petition in OP No.459 of 2017 is on the face of it barred by limitation. Pointing out that the notice demanding partition was issued as early as on 05.12.2001 and the reply was sent by the petitioners in the main Original Petition/ respondents herein, setting up a Will on 21.12.2001, the period of limitation would commence from at least the date of the reply notice. He would also point out that the applicants herein as plaintiffs had filed a suit in CS No.732 of 2002 and the written statement was filed therein setting up a Will on 08.04.2007. Contending that the period of limitation would commence running from at least 08.04.2007, Mr.S.R.Raghunathan, would contend that the Original Petition filed on 09.12.2016 is clearly barred by limitation. This contention of the learned counsel is based on the premise that Article 137 of the Limitation Act, would apply to proceedings seeking Letters of Administration with will annexed.

Mr.S.R.Raghunathan, learned counsel appearing for the applicants would also rely upon the judgment of the Hon'ble Supreme Court in Kunvarjeet Singh Khandpur v. Kirandeep Kaur and Others, reported in 2008 (8) SCC 463, wherein the Hon'ble Supreme Court had held that an Article 137 of the Limitation Act, would apply to proceedings under Sections 276 and 278 of the Indian Succession Act, seeking grant of Letters of Administration. Supreme Court He would also rely upon the judgment of the Hon'ble in Krishan Kumar Sharma v. Rajesh Kumar Sharma, reported in 2009 (11) SCC 537, wherein the Hon'ble Supreme Court reiterated the same position of law. Mr.S.R.Raghunathan, would also draw my attention to the judgment of Hon`ble Mr.Justice M.Srinivasan, as he then was, in Sakunthala v. Minor Vijayalakshmi & Others, reported in 1989 (2) LW 319. According to him, though the judgment of Hon'ble Mr.Justice M.Srinivasan, referred to above, was over ruled by a Division Bench of this Court in Jayalakshmi Ammal (Deceased) S.Krishnaswami (applicant), reported in 1990 (1) LW 337, in view of the judgment of the Hon'ble Supreme Court in Kunvarjeet Singh Khandpur v. Kirandeep Kaur, referred to supra, the view of Hon'ble Mr. Justice M.Srinivasan, should be taken to be affirmed by the Hon'ble Supreme Court. The learned counsel would also invite my attention to judgments of other High Courts on the question of Limitation. I do not deem it necessary, to refer to them inasmuch as the short question involved in this application is whether the Original Petition could be rejected as barred by limitation.

Contending contra Mr.S.William, learned counsel appearing for the contesting respondents/petitioners in Original Petition No.459 of 2017 would submit that a Division Bench of this Court in S.Vatsala v. K.S.Mohan & Others, reported in 2016 (1) LW 577, had in fact, after adverting to the decisions of the Hon'ble Supreme Court relied upon by the learned counsel for the applicant, held that in view of the provisions of Order 25 Rule 9 of the Original Side Rule, as well as the provisions of Letters Patent, the Article 137 would not apply to proceedings under Sections 232 and 278 of the Indian Succession Act.

Mr.S.R.Raghunathan, learned counsel appearing for the applicant would vehemently contend that the Division Bench judgment is per incuriam and as such, it should be ignored.

I have considered the rival submissions.

No doubt true in Sakunthala v. Minor Vijayalakshmi & Others, cited supra, Hon'ble Mr.Justice M.Srinivasan, as he then was, held that Article 137 would apply to proceedings for grant of Letters of Administration, under the Indian Succession Act. Almost immediately the said judgment was over ruled by the Division Bench of this Court in Jayalakshmi Ammal (deceased) S.Krishnaswami (applicant), reported in 1990 (1) LW 337. The judgments of the Hon'ble Supreme Court, referred to above, where rendered in cases arising out of the Original Petitions filed before the District Courts. The said distinction was noticed by the Division Bench of this Court in S.Vatsala v. K.S.Mohan & Others, cited supra, and the Division Bench after referring to the decisions of the Hon'ble Supreme Court had taken the view that the judgments of the Hon'ble Supreme Court would not apply to proceeding before this Court, inasmuch as, they are governed by the Original Side Rules and the Letters Patent.  While doing so, the Division Bench has observed as follows:

"48. To put it in a nutshell, in the instant case, from the materials available on record, it is seen that the petitioners in the Original Petition (respondents herein) have endeavoured to give an explanation for the delay in filing of the Original Petition as beneficiaries for the Letters of Administration. The delay is long. There appear to be some gaps. However, these are aspects to be considered while examining the petition and the petition cannot be thrown out at the threshold defeated by the law of limitation, in view of the Original Side Rules discussed aforesaid.

In the light of the ratio laid in the above decisions, it cannot be stated that Letters Patent and Rules made thereunder by the High Court for regulating the procedure on the original side, are subordinate legislation and, therefore, only Limitation Act which is a superior legislation will prevail. On a conspectus of the above legal scenario, we conclude that the probate Court has been conferred with exclusive jurisdiction and particularly, the conspicuous absence of any period of limitation in applying for issuance of probate/Letters of Administration makes it clear that the law of limitation will not apply to Sections 232 and 278 of the Indian Succession Act in respect of proceedings initiated before this Court as per the Original Side Rules. In such view of the matter, the finding of the learned single Judge holding that Article 137 of the Limitation Act is not applicable to probate proceedings and dismissal of the Original Applications, in our considered opinion, require no interference."

The Hon'ble Division Bench had arrived at the said conclusion, after referring to the judgments of the Hon'ble Supreme Court relied upon by the learned counsel for the applicant, therefore, it cannot be said that the Division Bench had rendered the judgment in ignorance of the law laid down by the Hon'ble Supreme Court. For reasons assigned, the Division Bench has held that the judgments of the Hon'ble Supreme Court would not apply and I do not think I can go into the correctness or otherwise of the reasons assigned by the Division Bench, since the judgment of the Division Bench is binding on me.

Mr.S.R.Raghunathan, learned counsel appearing for the applicants, would however, make a valiant effort to convenience me to conclude that the Division Bench judgment is per incuriam. I am unable to agree with this contention. If only the Division Bench had not adverted to the judgments of the Hon'ble Supreme Court, which conclude that Article 137 would apply to proceedings for grant of Letters of Administration, I would be justified in saying that the Division Bench judgment is per incuriam. But in the case on hand, the Hon'ble Division Bench which decided S.Vatsala v. K.S.Mohan & Others, cited supra, has referred to the judgments of the Hon'ble Supreme Court and has concluded that those judgments would not apply for the reasons stated therein. This being so, I do not think that I can go to the extent of concluding that the judgment of the Division Bench is per incuriam.

No doubt true on facts the petitioners in the Original Petition may have do a lot of explaining, in order to satisfy the provisions of Order 25 Rule 9 of the Original Side Rules, the said explaining can be done only at trial. Therefore, I do not think, it will in the interest of justice to reject this petition at the threshold. In view of the above, the application is dismissed.

However, there will be no order as to costs.