The limitation for filing a petition for letters of administration commences upon retrieval of the original will, not from prior knowledge of its existence, as established under relevant legal precedents.

JUDGMENT :

PURUSHAINDRA KUMAR KAURAV, J.

I.A. 34702/2024 (filed on behalf of respondent no.2 under Order VII Rule 11 of CPC)

The instant application on behalf of respondent no. 2, under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC), is for rejection of the petition on the ground that the same is barred by limitation.

2. In light of the short question to be adjudicated herein, it is apposite to briefly enumerate the facts relevant to the present application.

Factual matrix

3. The present petition under Section 276 of the Indian Succession Act, 1925, is for grant of letter of administration in respect of the Will dated 31.03.2015 (hereinafter referred to as the Will) executed by late Mr. Kulwant Singh (hereinafter referred to as the testator).

4. In the petition, it is disclosed that a suit for partition, bearing no. CS (OS) 540/2018 with respect to the properties which are the subject matter of the present petition, is pending before this Court.

5. The petition further discloses that the Will had not seen the light of day at the time of the institution of the said suit, and that its original came into the plaintiff’s power and possession, only upon its retrieval by the Commissioner appointed by the Court therein, in pursuance of its order dated 10.04.2023.

Submissions

6. Mr. P.S. Bindra, learned senior counsel appearing on behalf of respondent no. 2, made the following broad submissions:

6.1 That the petitioner was a party in a suit for partition (CS (OS) 540/2018), wherein, in his written statement, the primary claim was that he had rights over the suit property under the Will. Therefore, since he had knowledge of the Will, the limitation period, as provided under Article 127 of the Limitation Act, 1961 (hereinafter referred to as the Limitation Act), would expire three years from the date of such knowledge. In the said written statement, he had claimed knowledge of the Will from 15.10.2018, and therefore, the limitation period would expire on 15.10.2021. The present petition was filed in the year 2024, two years later. Thus, the petition is barred by limitation. Reliance is placed on the decision of this Court in Pratap Singh and Ors v. the State and Ors. /b>., 2010 DHC 3977-DB.

6.2 That the petitioner has suppressed material facts from the Court, and has approached with unclean hands.

6.3 That the testator was not of sound mind at the time of the alleged execution of the Will, as he suffered from various health ailments, numbing his mental capacities. The testator, thus, was not capable of executing the alleged Will.

6.4 That the Will is forged and fabricated and is not as per the last wishes of late Mr. Kulwant Singh.

6.5 That the petitioner has instituted the present petition only to render the partition suit in respect of the same properties infructuous, and to usurp the rightful share of the respondent no. 2 in the estate of his father.

7. Mr. Amit Singh Chauhan, learned counsel appearing for the petitioner, controverted the aforesaid submissions and made the following submissions:

7.1. That the grounds raised by respondent no. 2 are not founded on the averments in the petition or the documents relied on by the petitioner.

7.2. That petitions for the grant of probate or letters of administration in respect of Wills cannot be filed without annexing the original Will. Therefore, the limitation period for institution of the present petition commenced only once the original Will was retrieved in pursuance of order dated 10.04.2023 of the Court in CS (OS) 540/2018.

7.3. That the issue of limitation is a mixed question of law