Limitation applies to probate proceedings, but time spent in prior litigation may be excluded, allowing for a valid application for probate.

JUDGMENT :

KRISHNA S DIXIT, J.

'Where there is a will, there is a way’ said an English writer Mr.George Herbert (1593-1633) in his Book ‘Jacula Prudentusm’. Going by the rough statistical data relating to testamentary disputes, what Herbert said centuries ago can be restated with pun as: 'Where there is a will, there is a way to court’.

1. This Original Side Appeal calls in question the order dated 21.03.2024 made by a learned Single Judge of this court whereby, Respondents’ Application in I.A.No.2/2023 having been favoured, the Testamentary Original Suit No.1/2023 filed by the appellant herein has been dismissed as ‘barred by limitation’.

2. FOUNDATIONAL FACT MATRIX OF THE CASE:

(a) Appellant is the seventh successive Peethaadhipati (Pontiff) of Gurugunda Bramheshwara Swamy Mutt, also known as Nanjappaiah Mutt in Pattanayakanahalli of Tumkur District. It is the case of Appellant that in the Mutt tradition, the sitting Pontiff chooses a suitable person as his disciple (shishya) who can possibly become his successor-in-office, if the Pontiff executes a Will to that effect and breathes his last.

(b) Appellant instituted proceedings in Probate C.P.No.3/2017 in respect of a registered WILL dated 3.8.1989 allegedly executed by one Sri.Gurukumara Avadhoota Swamiji who happened to be the erstwhile fifth Pontiff of the Mutt, in succession. The Respondents herein came to be impleaded as the Defendants vide order dated 27.02.2020 and they having resisted the probate proceedings, the same came to be registered as Testamentary Original Suit No.1/2023. Respondent Nos.3 to 5 filed application in I.A.No.2/2023 under Order VII Rule 11(d) of Civil Procedure Code, 1908 seeking dismissal of the said proceeding on the ground that it was time barred. The learned Single Judge having favoured the same, aggrieved thereby appellant has preferred this Appeal.

3. Learned counsel appearing for the Appellant vehemently submitted that a Hindu Will which does not comprise property situate in any Presidency Towns, requires no probate; no such WILL becomes invalid by the mere run of time; right to seek probate can be exercised at any time; therefore probate proceedings cannot be resisted on the ground of delay & limitation; another reason is that they involve elements of continuing cause of action. So arguing, he sought for the invalidation of impugned order and remand of the matter for due adjudication on merits. In support of this submission, he pressed into service certain Rulings.

4. Per contra, learned counsel appearing for the contesting Respondents on Caveat, resisted the Appeal with his usual vehemence contending that Article 137 of the Schedule to The Limitation Act, 1963 is applicable to probate proceedings also; even when there is a recurring cause of action, once such cause accrues, limitation becomes applicable; such a cause accrued to the Appellant when his application in I.A.No.4 filed under Order XXII Rules 2 & 4 of Civil Procedure Code, 1908 was rejected on 14.07.1995 inasmuch as the said application was founded on subject WILL. Appellant unsuccessfully tried to secure the stead of deceased Plaintiff in O.S.No.98/1988 on the basis of the Will allegedly executed by the said Plaintiff. He too relied upon certain decisions in support of his contentions.

5. Having heard the learned counsel for the parties and having perused the Appeal Papers, we are inclined to grant indulgence in the matter for the following reasons:

5.1. AS TO LIMITATION PERIOD BEING APPLICABLE TO PROBATE PROCEEDINGS ALSO:

(a) Learned counsel for the Appellant argued that there being no legal requirement of a probate for a Hindu Will, that does not comprise property situate in Presidency Towns, the question of any limitation period becoming applicable for instituting probate proceedings, would not arise. He added that even otherwise, it is a matter of continuing cause of action and therefore, a legatee can knock at the doors of Probate Court whenever he wants to effectuate the bequest, t