Sanjay Kapur vs State and Others

Sanjiv Khanna, J.

I.A. No. 13895/2006

This application has been filed by respondent Nos. 8 and 9 under Order VII, Rule 11 read with Section 151 of the Code of Civil Procedure, 1908 stating, inter alia, that the Petition u/s 228 of the Indian Succession Act, 1935 (hereinafter referred to as the Act, for short) is barred by limitation.

Subject matter of the present petition u/s 228 of the Act is Will dated 16th May, 1990 purported to have been executed by late Smt. Kailash Kapoor. High Court of Justice, District Probate Registry of Birmingham, England and Wales has issued probate in respect of the said Will vide order dated 21st November, 1997.

Learned Counsel for the respondent Nos. 8 and 9 submits that cause of action for filing the application u/s 228 of the Act arose when the said probate was granted on 21st November, 1997 in terms of Article 137 of the Limitation Act, 1963, the present Petition should have been filed within three years thereafter. The present petition was filed on 28th February, 2001 and is barred by limitation. Learned Counsel relies on The Kerala State Electricity Board, Trivandrum Vs. T.P. Kunhaliumma, wherein it has been observed that Article 137 is a residual provision and the words "any other application" used therein applies not only to applications filed under the Code of Civil Procedure, 1908 but an application under any Act. He also relies upon the observations made by the Punjab and Haryana High Court in Estate of late Shri Gurcharan Dass Puri AIR 1987 P&H 122 wherein it has been observed as under:

In Ramanand Thakur Vs. Parmanand Thakur, , the application was filed for 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 Article 137 of the Limitation Act, 1963, to such a case did not arise....

Learned Counsel submits that the aforesaid decision was followed by Punjab & Haryana High Court again in State of Punjab Vs. Vishwajit Singh and Others, . Learned Counsel for respondent Nos. 8 and 9 placed special emphasis on the words "as long as Will remains unprobated" and "right to apply for making an application accrues from day to day as long as Will remains unprobated" used by Punjab & Haryana High Court in the case of Gurcharan Singh (supra).

It is well settled that Article 137 of the Limitation Act, 1963 does not apply to petitions for grant of probate and letters of administration. The reason as explained by the Madras High Court in In the matter of S. Krishnaswami and etc. etc., is as under:

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 Article 137 of the Limitation Act, 1963.

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We have now, as per our preceding discussion, settled the question and we hold that Article 137 of the Limitation Act would not apply to proceedings filed for grant of probate or letters of administration with or without the Will annexed. Before concluding, we must point out that though the proceedings filed for grant of probate or letters of administration may not come within the mischief of Article 137 of the Limitation Act, 1963, yet the delay aspect is relevant to test the genuineness of the Will propounded. Delay in taking steps gives rise to suspicion and the longer the delay the stronger the suspicion.

The aforesaid reasoning given by Madras High Court has been followed by a Division Bench of this Court in S.S. Lal Vs. Vishnu Mitter Govil, inter alia, holding that in a petition for grant of probate or letters of administration, there is no right asserted or claimed by the applicant. The applicant only seeks recognition from a court to perform a duty. Probate or letters of administration is a conclusive proof of the legal character. No right is asserted or claimed. I may only note here that the decision of the Supreme Court in the case of Kerala State Electricity Board (supra) was noted by the Division Bench of this Court in the case of S.S. Lal (supra) but it was observed that the said reasoning and Article 137 of the Limitation Act, 1963 would not apply to a petition for grant of probate or Letters of Administration. Similar view has also been taken by Single Judges of this Court in Shri Kanwal Malhotra Vs. The State, and Rajesh Sharma v. Krishan Kumar Sharma 143 (2007) DLT 216.

Section 228 of the Act reads as under:

Administration, with copy annexed, of authenticated copy of Will proved abroad.-When a Will has been proved and deposited in a Court of competent jurisdiction situated beyond the limits of the State, whether within or beyond the limits of India, and a properly authenticated copy of the Will is produced, letters of administration may be granted with a copy of such copy annexed.

I feel that the reasoning and the ground given by the Madras High Court in E. Devarajan (supra) and a Division Bench of this Court in S.S. Lal (supra) and Single Judges of this Court will equally apply to a petition u/s 228 of the Act. By filing a petition u/s 228 of the Act, the applicant seeks enforcement of the same recognition which one is entitled to as in a probate petition or a petition for grant of Letters of Administration. The basic purpose and object behind the two petitions is the same, i.e. to seek recognition from the Court to perform a duty. Purpose and object is the same.

Observations made by Punjab and Haryana High Court in the case of Gurcharan Das (supra) to which pointed reference was made by the learned Counsel for the respondent Nos. 8 and 9 are in a different context altogether. The said observations will apply when a person seeks revocation of a probate. This aspect has been explained by the Division Bench of this Court in the case of S.S. Lal (supra), where an earlier decision of Punjab & Haryana High Court in Hari Narain and Others Vs. Subhash Chander and Others, was cited and distinguished on the ground that the ratio of the said decision applies when an application/petition is filed for revocation of Will. The said ratio will not apply to cases where a petition u/s 228 of the Act is filed.

For enforcing undisputed Wills in India, either a probate petition or a petition for letters of administration is required. Where, however, a Will has been proved and deposited in a court of competent jurisdiction outside India, a petition u/s 228 of the Act is required to be filed for grant of letters of administration. After an application u/s 228 of the Act is filed and allowed, the effect thereof is that letters of administration is granted in favour of the applicant/petitioner. Therefore, Section 228 of the Act is akin to provisions of Section 222 and 276 of the Act. The object and purpose is the same, i.e. to seek recognition in respect of Will in question. No distinction is justified keeping in view the object and purpose of the aforesaid Sections of the Act. In fact, Section 228 of the Act is an enabling provision which entitles the petitioners/applicant to get letters of administration on the basis of a Will proved and deposited in a foreign court. Nevertheless, the final order is issue of letters of administration, if the petition is allowed.

In view of the above, I do not find any merit in the present application and the same is accordingly dismissed. No costs.

Test. Case No. 15/2001

Test. Case No. 15/2001 relates to Will dated 16th May, 1990 while petitioner in Test Case No. 23/2003, relies upon Will dated 29th April, 1990. The Will relied upon by the petitioner in Test. Case No. 15/2001 is subsequent in point of time.

Learned Counsel for the parties agree that both the petitioners will file affidavit by way of evidence within eight weeks but evidence will be first recorded in Test. Case No. 15/2001. Cross examination of the common parties/witnesses in the two Test Cases will be done in Test. Case No. 15/2001 and the said evidence will be read in Test. Case No. 23/2003 also. This will avoid duplication of evidence and other complications. However, evidence of witnesses who are not common, will be separately recorded in the two test. cases with the rider that the evidence will be first recorded and concluded in Test. Case No. 15/2001.

List before the Joint Registrar on 15th December, 2008 when dates will be granted for cross examination of common parties/witnesses of the petitioner in Test. Case No. 15/2001 and for examination in chief/cross examination of third party/official witnesses.