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2009(3) Supreme 165
SUPREME COURT OF INDIA
(From Delhi High Court)
Dr. Arijit Pasayat and Asok Kumar Ganguly, JJ.
Krishna Kumar Sharma — Appellant
versus
Rajesh Kumar Sharma — Respondent
Civil Appeal No. 1967 of 2009
(Arising out of SLP (C) No.16110 of 2007)
Decided on : 31-03-2009
(1976)4 SCC 634; (1989)4 SCC 582 – Relied upon.
(b) Limitation Act, 1963 – Article 137 – Article 137 is applicable to the petition for grant of Letters of Administration. (Para 7)
112 (2004) Delhi Law Times 877 (DB); 125 (2005) Delhi Law Times 281 – Distinguished impliedly.
(c) Indian Succession Act, 1925 – Section 276 – In such proceedings the application merely seeks recognition from the Court to perform a duty because of the nature of the proceedings – It is a continuing right – Nevertheless application for grant of probate or letters of Administration are covered by Article 137, Limitation Act. (Paras 7 and 8)
AIR 1991 Madras 214 – Distinguished.
(d) Indian Succession Act, 1925 – Section 276 r/w Article 137, Limitation Act, 1963 –Application for grant of probate or letters of Administration is an application for Court’s permission to perform a legal duty created by a Will – It 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 – The right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years form the date of the deceased’s death – However, delay beyond 3 years after the deceased’s death cannot be equated with the absolute bar of limitation – Such delay would arouse suspicion and greater the delay, greater would be the suspicion – Once the delay is explained and execution and attestation are proved, suspicion of delay no longer operates. (Para 10)
(2008)8 SCC 463 – Relied upon.
AIR 1983 Bom. 268 – Cited with approval.
Facts of the case :
1. Respondent, the propounder of the registered will dated 13th July, 1989 executed by his mother, has locked horns with his step brother, Krishan Kumar Sharma.
2. The respondent’s case is that the will dated 13th July, 1989 was made by the above said testatrix in sound disposing mind on 13th July, 1989 and it was got registered on 11th September, 1989. The testatrix died on 9th July, 1990. Except the appellant, none of the other siblings of the appellant contested the petition moved by the appellant under Section 276 of the Indian Succession Act, 1925.
3. The basic question before the High Court was whether Article 137 of the Indian Limitation Act, 1963 applies to the facts of the present case.
4. The High Court relied upon the judgments of Delhi High Court in to hold that Limitation Act has no application to proceedings seeking for probate.
Finding of the Court :
Article 137 of Limitation Act is applicable to the cases of grant of probate or letters of Administration but such delay cannot be equated with the absolute bar of limitation.
Result : Appeal partly allowed.
JUDGMENT
Dr. Arijit Pasayat, J. —
1. Leave granted.
2. Challenge in this appeal is to the order passed by the Delhi High Court which by the impugned order allowed the appeal filed by the respondent.
3. Background facts in a nutshell are as follows:
Respondent, the propounder of the registered will dated 13th July, 1989 executed by his mother, has locked horns with his step brother, Krishan Kumar Sharma, the appellant herein Smt. Sneh Prabha Sharma, the testatrix, and her husband Ram Mohan Sharma were married twice. Respondent is the son of testatrix and Ram Mohan Sharma. Appellant is the son from the first wife of Ram Mohan Sharma. The respondent’s case is this that the will dated 13th July, 1989 was made by the above said testatrix in sound disposing mind on 13th July, 1989 and it was got registered on 11th September, 1989. Smt. Sneh Prabha Sharma died on 9th July, 1990. Except the appellant, none of the other siblings of the appellant contested the petition moved by the appellant under Section 276 of the Indian Succession Act, 1925 (in short the ‘Act’). The basic question before the High Court was whether Article 137 of the Indian Limitation Act, 1963 (in short the ‘Limitation Act’) applies to the facts of the present case. The High Court relied upon the judgments of Delhi High Court in S.S. Lal v. Vishnu Mitter Govil1 [112 (2004) Delhi Law Times 877 (DB)] and in Kanwal Malhotra v. State2 [125 (2005) Delhi Law Times 281] to hold that Limitation Act has no application to proceedings seeking for probate.
4. Learned counsel for the appellant submitted that the interpretation placed by the High Court is not correct. The primary question that needs reconsideration is whether Article 137 of the Limitation Act is applicable. It appears that certain other aspects were considered by the High Court to which reference shall be made subsequently.
5. In The Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma3 [1976 (4) SCC 634] it was inter alia observed as follows:
“18. The alteration of the division as well as the change in the collocation of words in Article 137 of the Limitation Act, 1963 compared with Article 181 of the 1908 Limitation Act shows that applications contemplated under Article 137 are not applications confined to the Code of Civil Procedure. In the 1908 Limitation Act there was no division between applications in specified cases and other applications as in the 1963 Limitation Act. The words “any other application” under Article 137 cannot be said on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act. But it has to be an application to a court for the reason that Sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when court is closed and extension of prescribed period if applicant or the appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application during such period.
22. The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil court. With respect we differ from the view taken by the two-judge bench of this Court in Athani Municipal Council case and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a court. The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application falling within the scope of Article 137 of the 1963 Limitation Act.”
In terms of the aforesaid judgment any application to Civil Court under the Act is covered by Article 137. The application is made in terms of Section 264 of the Act to the District Judge. Section 2(bb) of the Act defines the District Judge
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