TaxTMI 
TaxTMI 
2016 (1) TMI 1502
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....he daughters of the deceased by way of application in Application No. 3515 of 2012 on the ground that it is barred by limitation and that the net value of the assets of the testator is undervalued. The said Original Petition was contested by one Vatsala, another daughter of the deceased testator by filing Application No. 3516 of 2012 stating that the petition is time-barred and sought for rejection of the plaint. 3. The petitioners opposed both the applications by filing separate counters. According to the petitioners, though the testator died on 14.12.1996, i.e., within a few days after the execution of the Will dated 11.12.1996, the Will was read out in the presence of all parties on the 11th day ceremony of the deceased. According to them, the factual aspects can be proved only after converting the Original Petition into a Testamentary Original Suit and by allowing the parties to let in their evidence and it is premature to determine the question of limitation even before the trial. 4. Having considered the submissions raised by the learned counsel for the parties and the materials available on record, the learned single Judge of this Court by common judgment dated 31.10.2....
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....9. Learned counsel for the appellants would submit that the propounder of the Will has initiated proceedings seeking probate nearly after 15 years from the time of death of the testator and it is clearly barred by limitation and as such, according to him, there are latches on the part of the petitioners/respondents 1 to 4, who have come to Court belatedly only with an intention to defeat the rightful claims and shares of defendants. 10. Per contra, it is the response of the learned Senior Counsel for the respondents that the probate proceedings are for the purpose of establishing genuineness and due execution of the Will and the delay that has occurred in the limitation of proceedings, has been well explained by the respondents by proper pleading. Points for determination:-- 11. A thorough reading of the materials and the respective submissions of the learned counsels necessitate a brief glance into the Letters Patent Charter under which the High Court is established. Clauses 11 and 12 of the Letters Patent specifically vest in the High Court its Ordinary Original Jurisdiction. Clause 37 of the Letters Patent vested in the High Court the power to make rules and orders for ....
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....ill is put to test to prove that it is the last Will and testament of the deceased, it is a probate action. Probate Court cannot decide title. On the other hand, it is concerned only with the following aspects with respect to execution of a Will, viz., "(i) Whether the Will sought to be probated, is the last Will of the testator; (ii) Whether it is duly executed and attested as required in law; (iii) Whether the Will was executed without undue influence in a sound and disposing state of mind." It is, indeed, the Court of probate cannot traverse beyond these aspects. While so, when the rights of parties are not decided in a probate proceedings, the Limitation Act becomes inapplicable. 16. In this regard, the Hon'ble Supreme Court in Chiranjilal Shrilal Goenka v. Jasjit Singh and others 1993 (2) SCC 507] in paragraph 15 of the judgment held in the following words:-- "...the only issue in a probate proceeding relates to the genuineness and due execution of the Will and the court itself is under duty to determine it and preserve the original Will in its custody. The Succession Act is a self contained code in so far as the question of making....
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....leged Will was read out to all the legal heirs even on the eleventh day ceremony of the deceased, the knowledge and right to apply starts on that date. The relevant date 15.12.1996, being the date of death, the limitation starts from the eleventh day i.e., from 26.12.1996 and the limitation would have set in by 27.12.1999. 20. In support of his submission as to how the period of limitation under Article 137 is to be reckoned, learned counsel for the appellants relied on the following judgments:-- "(i) Pratap Singh v. State wherein the Division Bench of the Delhi High Court, placing reliance on Kunvarjeet Singh Khandpur's case (cited supra) held as follows:-- "The period of three years would surely commence atleast from the date on which a legatee under a Will could be justifiably ascribed with the knowledge that the Will on which his claim is founded is likely to be disputed by other persons especially the natural heirs of the Testatrix. By way of adumbration, hypothetically, a Will may have been executed in Delhi in 1950. The bequests made and dealt with therein may not have come into any dispute for several decades. It could be that some legatees we....
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....ee - Testamentary Case No. 28 of 2005 [delivered on 08.02.2006] wherein it has been held that in the absence of any specific period of limitation prescribed in the Indian Succession Act, 1925, Article 137 of the Limitation Act 1963 would be applicable." 21. In terms of the aforesaid judgments, the contention of the appellants was that the respondents 1 to 4 ought to have filed the petition for grant of Letters of Administration as mandatorily required under Section 213(2) of the Indian Succession Act within three years from 18.4.2003, the date of legal notice of partition or at least from the date of filing of the suit, i.e., 03.7.2007. The Original Petition having been filed on 27.6.2011, according to the learned counsel, is beyond the period of limitation and is hopelessly time barred. 22. On the other hand, it was urged by the learned counsel for the respondents that right to apply for probate or Letters of Administration is a recurring one and it would be inappropriate to apply Article 137. 23. There is no wriggling out of the proposition settled by the highest Court in the land. Significantly, a bare reading of the judgment in Kunvarjeet Singh Khandpur's case (cit....
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....ight to apply 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." The Hon'ble Apex Court also opined that conclusion 'c' is the correct position of law. Significantly, the reasoning of this Court though was approved by the Hon'ble Supreme Court, the conclusion is not in agreement with the same. Period of Limitation:-- 26. The statute of limitations alters the common law by introducing limitations to the right of actions in specified cases. The object of the Act is to secure and quiet men in their estates and possession. One means of doing so is within a reasonable time under the penalty of losing the right of action in case of their right to sue within a prescribed time. Such limitations tend to the prevention of false testimony, the preservat....
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....n. More significantly, the Limitation Act also does not have specific provision to deal with probate petitions. According to Article 137, the three year limitation period is provided from when the "right to apply" accrues. If one applies this bar of three years to an application for obtaining probate, it would mean that the right to apply accrues immediately from the date of the death of the testator. 29. No doubt, Article 137 does not warrant for the assumption that the right to apply accrues on the date of death of the deceased. An application for probate is only to seek the Court's imprimatur to perform a legal obligation created by a Will or for recognition as a testamentary trustee. Basically, the right being a continuous right can be exercised at any point after the death of the testator. 30. In Ramanand Takur v. Paramanad Takur AIR 1982 Pat 87], following the decision of this Court in Ganamuthi Upadasi (cited supra), the Patna High Court held that it would be difficult to find out as to when the right to apply accrues in the absence of any date fixed. Hence, it was decided that right to apply remains until the Will remains unprobated. 31. The aforesaid discus....
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.... Article 137 of the Limitation Act in the present case, yet the delay aspect is relevant to test the genuineness of the will propounded. 36. It is also worthwhile to mention that no period is prescribed for filing petition for probate or letters of administration or Succession Certificate in the Original Side Rules. As extracted above, Rule 9 specifically provides for delay in applying for Probate or Letters of Administration to be explained which is mandatory in nature. Depending upon facts and circumstances of each case, the right to apply for probate or letters of administration made become necessary even beyond three years from the date of death of the testator. One such instance may be when a party came to know of the Will long after the testator's death. Whenever there is delay, it has to explained. More over, if the execution of the Will is proved, the delay in taking steps to probate the Will, will not loom large, since Order XXV, Rule 9 of Madras High Court Original Side Rules has not prescribed any period of limitation and probably, it aims to give explanation alone. Though delay may cause suspicion about the Will, it cannot be held that the application is barred b....
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....be said to apply by necessary implication. The relevant passage found in paragraph 13 of the judgment is usefully extracted:-- "...The question is whether there is any well-recognized principle whereunder the period of limitation can be regarded as being suspended because a party is prevented under certain circumstances from taking action in pursuance of his rights. The Limitation Act is a consolidating and amending statute relating to the limitation of suits, appeals and certain types of applications to courts and must, therefore, be regarded as an exhaustive Code. It is a piece of adjective or procedural law and not of substantive law. Rules of procedure, whatever they may be, are to be applied only to matters to which they are made applicable by the legislature expressly or by necessary implication. They cannot be extended by analogy or reference to proceedings to which they do not expressly apply or could be said to apply by necessary implication. It would, therefore, not be correct to apply any of the provisions of the Limitation Act to matters which do not strictly fall within the purview of those provisions. Thus for instance, period of limitation for various kinds ....
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....tion 100A." 43. Following the Larger Bench judgment in P.S. Sathappan case (cited supra), the Hon'ble Supreme Court, in Iridium India Telecom Ltd. v. Motorola Inc. 2005 (1) CTC 304 (SC)], held that Letters Patent will prevail over CPC as the non-obstante clause used in Section 129 CPC is not merely declaratory but indicative of Parliament's intention to prevent the application of CPC in respect of civil proceedings on the Original Side of the High Courts. In Paragraph 19 of the judgment, Their Lordships have opined as follows:-- "The Legislature recognized the special role assigned to the Chartered High Courts and exempted them from the application of several provisions of the Code in the exercise of their ordinary or extra-ordinary civil jurisdiction for the simple reason that those jurisdictions were governed by the procedure prescribed by the rules made in exercise of the powers of the Chartered High Courts under clause 37 of the Letters Patent. Interestingly, Section 652 of this Act itself empowered the High Courts to make rules "consistent with this Code to regulate any matter connected with the procedure of the Courts of Civil Judicature subject to its sup....
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....the so called explanation offered by the respondents would be acceptable. Conclusion:-- 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. 49. 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 ....