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2020 Supreme(Cal) 292
IN THE HIGH COURT OF CALCUTTA
Moushumi Bhattacharya, J.
In The Goods Of : Hanuman Prasad Agarwal @ Hanuman Prosad Agarwal And Suresh Agarwal @ Suresh Kumar Agarwal - Appellant
Versus
Satyanarain Agarwal And Others - Respondents
G.A. No. 990 of 2018 with T.S. No. 7 of 2016
Decided On : 11-06-2020
Mr. Ranjan Bachawat, Sr. Adv., Mr. Krishnaraj Thaker, Adv. Mr. Avinash Kankani, Adv. Mr. Suman Majumder, for the Appellant; Mr. Abhrajit Mitra, Sr. Adv., Mr. Satadeep Bhattacharyya, Adv. Mr. Niladri Bhattacharjee, Adv. Ms. Deblina Chattaraj, Adv., for the Respondent
The main legal point established in the judgment is that the right to apply for probate accrues when a challenge is made to the Will or a dispute arises, not from the date of death of the testator, as clarified by the interpretation of Article 137 of the Limitation Act, 1963.
Headnote:
Limitation - Probate Application - Article 137 of the Limitation Act, 1963 - [LIMITATION] - [Probate Application] - [Article 137 of the Limitation Act, 1963] - The court discussed the interpretation of Article 137 and concluded that the right to apply for probate accrues when a challenge is made to the Will or a dispute arises, not from the date of death of the testator. The court emphasized that there is no outer limit for filing an application for probate and the time starts running from the date when the right to apply accrues. The court also highlighted that the absence of an end-point within which such an application has to be filed is a deliberate legislative omission pointing to a larger rationale underlying cases involving grant of probate. The court referred to a recent decision of the Supreme Court to support its interpretation of the limitation provision.
Fact of the Case:
The defendant no.1 sought rejection of the plaintiff's application for grant of probate, claiming that the application was barred by the laws of limitation. The plaintiff's application for probate was filed after more than 22 years since the testator's death, and the defendant argued that it should have been filed within three years from the date of death of the testator.
Finding of the Court:
The court found that the application for probate was not time-barred as the right to apply for probate accrues when a challenge is made to the Will or a dispute arises, not from the date of death of the testator. The court also concluded that the plaintiff's application did not fall foul of any of the infirmities under the relevant rules of the Code of Civil Procedure.
Issues: The main issue was whether the application for probate was time-barred under Article 137 of the Limitation Act, 1963.
Ratio Decidendi: The court's decision was based on the interpretation of Article 137, which clarified that the right to apply for probate accrues when a challenge is made to the Will or a dispute arises, not from the date of death of the testator. The court also emphasized that there is no outer limit for filing an application for probate and the time starts running from the date when the right to apply accrues.
Final Decision: The court dismissed the defendant's application for rejection of the plaintiff's application for grant of probate, finding no merit in the claim that the application was time-barred.
JUDGMENT
Moushumi Bhattacharya, J. - The defendant no.1 seeks rejection of the plaintiff's application for grant of probate which was converted to a contentious cause and consequently a testamentary suit by an order dated 20th April, 2016.
2. The application for probate; PLA No. 64 of 2015, was filed by one Suresh Agarwal, the executor of the last Will and Testament of Hanuman Prasad Agarwal, who died on 13 th June 1993. The last Will and Testament was signed by the testator on 16 th April 1989. The application for grant of probate sets out the heirs and legal representatives of Hanuman Prasad Agarwal (the testator) namely his 3 sons. The probate petition was filed on 8 th September 2014. The present application for rejection of the probate proceedings was filed on 8 th February 2018 by the defendant no.1, Satyanarain Agarwal, who is one of the sons of the testator.
3. The ground urged for rejection of the application for probate is that the application is barred by the laws of limitation.
4. Mr. Abhrajit Mitra, learned Senior Counsel appearing for the applicant/defendant No. 1, submits that the application for grant of probate should be dismissed on the ground that the application is barred by limitation. According to counsel, the application for grant of probate was filed after more than 22 years since the testator died on 13 June 1993. There is no explanation as to the reason for the delay in filing the application. Counsel relies on Article 137 of the Limitation Act, 1963 as being applicable for grant of probate and letters of administration. Counsel relies on a number of decisions on this issue including Kunvarjeet Singh Khandpur vs. Kirandeep Kaur reported in (2008) 8 SCC 463 ; Krishan Kumar Sharma vs. Rajesh Kumar Sharma, (2009) 11 SCC 537 and Paritosh Patra vs. Angur Bala Rana, AIR 2014 Cal 133 and Ramesh Nivrutti Bhagwat vs. Surendra Manohar Parakhe, MANU/SC/1392/2019 for the proposition that the right to apply for probate accrues on the date of death of the testator. According to counsel, if Article 137 of the Limitation Act applies, then an application for grant of probate has to be filed within three years from the date when the right to make such application accrues. In the present case, since the deceased expired on 13 th June 1993, the application for his last Will and testament dated 16 th April 1989 should have been filed within three years from the date of death of the testator and also that there is no explanation for the delay or the grounds for seeking exemption from limitation as had been necessitated in Church of Christ Charitable Trust And Educational Charitable Society vs. Ponniamman Educational Trust reported in (2012) 8 SCC 706 . Reliance is placed on Harsh Vardhan Lodha vs. Ajay Kumar Newar, (2016) 120(2) CWN 673 ; Umesh Chandra Saxena vs. Administrator General, U.P. Allahabad, AIR 1999 All 109 for the proposition that the principles of Order VII Rule 11 would apply to all proceedings which are governed by the laws of limitation.
5. Counsel further contends that the property forming the subject matter of the Will had been dealt with by a registered Deed of Gift dated 5 th March 2011 by reason of which the plaintiff and the alleged beneficiaries of the Will were deemed to have knowledge of the said Deed of Gift as on the date of execution and registration. [Ref: Dilboo (Smt.) (Dead) by LRS. vs. Dhanraji (Smt.) (Dead) reported in (2000) 7 SCC 702 and GPT Healthcare Pvt. Ltd vs. Soorajmull Nagarmull reported in 2018 SCC OnLine Cal 3800 ]. It is also urged that a party cannot be expected to retain evidence as to the condition of the deceased or his mental and physical state as on the date of execution of the alleged Will and gross injustice would therefore be caused inasmuch as it may not be possible for the defendant no. 1 to produce evidence as to the physical/mental condition of the deceased as on the date of execution of the Will in order to establish the invalidity thereof after a gap of 22 years. C
