1983 (3) TMI 314

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.... to the aspect of limitation, Mr. Dalapatrai urged that by virtue of the residuary Art. 37 of the Limitation Act, the petition is barred by limitation as it was not filed within 3 years from the date of the deceased's death on 3rd Jan., 1974. which according to Mr. Dalapatrai was that starting point when the petitioner's right to apply accrued. 14. This contention is fallacious. The Sched....

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.... is no warrant for the assumption that the right to apply envisaged in Art. 137 necessarily accrues on the date of the death of the deceased. Such an application is to seek the Court's imprimatur to perform a duty created by a Will or for recognition as a testamentary trustee. The right to apply is a continuous right which is capable of being exercised as long as the object of the trust exists....

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....delay was explained by the fact that there was no very urgent necessity for taking out probate, the estate itself being of trifling value. For that matter, provisions for explaining delay in making the application beyond 3 years of the deceased's death is to be found in R. 382 of the High Court Rules. The 3-year period is presumably on the assumption that the necessity to make the application ....

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....caveatrix filed her suit on 18th Jan., 1977. 15. Reliance was placed by Mr. Dalapatrai on the observations in Kerala State Electricity Board v. T. P. Kunhaliumma, [1977]1SCR996 (which was a case under Section 16(3) of the Telegraph Act claiming enhanced compensation), that the words "any other application" in Art. 137 would be a petition or any application under any Act. Those observati....