Succession Act, 1925:
s. 276 – Applications for grant of probate or letters of administration – Applicability of Art. 137 – Held: Art. 137 is applicable to the applications for grant of probate or letters of administration – Limitation Act, 1963 – Art. 137. ss. 276 and 228 – Application under, for probate or for letters of administration – If barred by limitation – Held: In a proceeding, or in an application filed for grant of probate or letters of administration, no right is asserted or claimed by the applicant – Application for grant of probate or letters of administration is for the court’s permission to perform a legal duty created by a Will or for recognition as a testamentary trustee – Even if the Will is probated by any court mentioned in s. 228, right to get the letters of administration is a continuous right which can be exercised any time, 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 – On facts, probate case filed by respondent no.2 for letters of administration u/s. 228/276 not barred by limitation – After passing away of the testator, in 2000, the appellants started intermeddling with properties bequeathed to respondent no.2, situated in Delhi and, thus, he was compelled to apply for letters of administration – Cause of action started from the date on which the appellants started intermeddling with the properties bequeathed to respondent no.2 – Thus, the application for letters of administration not barred by limitation – High Court rightly refused to reject the plaint in exercise of powers u/Or. VII r. 11 – Limitation Act, 1963 – Art. 137. Dismissing the appeal, the Court
HELD: 1.1 Article 137 of the Limitation Act, 1963 shall be applicable to the applications for grant of probate or letters of administration. Application under Section 276 and 228 of the Succession Act shall be covered by Article 137. [Para 10, 11] [1113-F; G]
Kunvarjeet Singh Khandpur v. Kirandeep Kaur
(2008) 8 SCC 463 : [2008] 5 SCR 1057 ; Krishan
Kumar Sharma v. Rajesh Kumar Sharma (2009) 11 SCC
537 – relied on.
1.2 As per Article 137 of the Limitation Act, the period of limitation prescribed is three years and the three years begin to run when the ‘right to apply’ accrues. The crucial expression under Article 137 of the Limitation Act is ‘right to apply’. [Para 12.1][1114-B]
1.3 When an application under Section 276 of the Act is submitted for probate or for letters of administration with Will, if any objection is raised by any body with respect to execution of the Will, in that case, the applicant is required to prove the Will and thereafter the Will shall be probated and the court may pass an order for letters of administration. However, in a case where a Will has been proved or deposited in a court of competent jurisdiction situated beyond the limits of the State, whether within or beyond the limits of India, in that case, as provided under Section 228 of the Act, when a properly authenticated copy of the Will is produced, the letters of administration may be granted in favour of such person. Meaning thereby, in such a situation, the Will is not required to be proved again and it shall be conclusive. Therefore, Section 228 of the Act shall be an enabling provision and it confers an additional right to apply for letters of administration on the basis of such authenticated copy of the Will. Therefore, as rightly observed by the Single Judge and the Division Bench that Section 228 is akin to Section 276 of the Act. [Para 14.1][1115-E-H; 1116-A]
1.4 In a proceeding, or 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 letters of administration issued by a competent court is conclusive proof of the legal character throughout the world. That the proceedings filed for grant of probate or letters of administration is not an action in law but it is an action in rem. An application for grant of probate or letters of administration 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. Therefore, even if the Will is probated by any court mentioned in Section 228 of the Act, right to get the letters of administration is a continuous right which can be exercised any time, 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. [Para 17][1118-B-D]
1.5 The submission on behalf of the appellants that Probate Case No. 15/2001 filed by respondent no.2 for letters of administration under Section 228 of the Act, read with Section
276 of the Act is barred by law of limitation, cannot be accepted. Even in the plaint, it is specifically pleaded that after passing away of the father of the parties in the year 2000, the appellants started intermeddling with properties bequeathed to respondent no.2, which were situated in Delhi and, therefore, left with no option, he was compelled to apply for letters of administration. Therefore, even as per the pleadings in the application, the cause of action started from the date on which the appellants started intermeddling with the properties bequeathed to respondent no.2, after passing away of the father of the parties in the year 2000. Therefore, in the facts and circumstances of the case, both the Single Judge and the Division Bench rightly refused to reject the application in exercise of powers under Order VII Rule 11 CPC. In the facts and circumstances of the case, it cannot be said that the application for letters of administration was clearly barred by the law of limitation which was required to be rejected in exercise of powers under Order VII Rule 11(d) CPC. The view taken by the High Court is concurred with. [Para 18][1118-F-H; 1119-A-C]
Kunvarjeet Singh Khandpur v. Kirandeep Kaur (2008)
8 SCC 463 : [2008] 5 SCR 1057 – relied on.
Estate of Late Shri Gurcharan Dass Puri AIR 1987 P&H 122 ; Ramanand Thakur v. Parmanand Thakur
AIR 1982 Patna 87 ; Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani AIR 1983 Bom. 268 ;
S. Krishnaswami v. E. Ramiah AIR 1991 Mad. 214 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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