The right to apply for probate or letters of administration under the Succession Act is a continuing right, and the application seeks recognition from the court to perform a duty, which does not result in a strict limitation period under Article 137 of the Limitation Act.

JUDGMENT :

N.V. Anjaria, J.

The present First Appeal is preferred against the order dated 15.12.2018 passed below exhibit 42 application by learned Second Additional Senior Civil Judge, Morbi, in Special Civil Suit No. 24 of 2017.

Application exhibit 42 was filed by the respondent-defendant under Order 7 Rule 11 of the Civil Procedure Code, 1908, which came to be allowed and plaint-cum-application of the appellant-plaintiff came to be rejected.

2. It was originally filed by the appellant was Probate Application No. 6 of 2016 in respect of Will dated 24.02.1997. After objections were raised by the respondents, the said probate application was converted into Special Civil Suit No. 24 of 2017. In those proceedings, application exhibit 42 came to be filed and culminated into impugned order.

3. Ishabhai Sandhi who was father of the parties died on 05.03.1997. Said Ishabhai married twice. The appellants happen to be children from the second wife whereas respondents are children of first wife of deceased Ishabhai. The deceased had made registered Will dated 24.02.1997 bequeathing his properties to the appellants.

3.1 In the year 2006, the appellants approached the Mamlatdar seeking mutation in the record of rights on the basis of the Will of the deceased Ishabhai. Mutation entry no. 6008 was initially entered, however, upon it become in dispute as the respondents objected to it, it was rejected on 14.06.2006. The competent authority refused to certify the same.

3.2 After mutation no. 6008 was not certified and was rejected in the year 2006, the probate application was filed by the appellants in the year 2006 by filing application exhibit 42 under Order 7 Rule 14, CPC. The respondents contended that the probate application converted into suit was barred by law of limitation.

3.3 Article 137 of the Limitation Act, 1963, was relied on to contend that the plaint of Special Civil Suit stood barred by limitation.

3.4 The Court below took the view that Article 137 of the Limitation Act applies to all applications, including the probate application as well. The limitation thereunder was three years. It was noticed by the Court below to hold that the probate application-suit was beyond the period of limitation, therefore not competent to be maintained in law.

4. Learned advocate Mr. P.P. Majmudar for the appellants assailed the impugned order rejecting the plaint to contend that the application was maintainable under the provisions of the India Succession Act, that the limitation was mixed question of law and fact and that Article 135 of the Limitation Act was misread and misapplied by the Court.

4.1 On the other hand, it was seriously submitted by learned advocate for the respondent Mr. J.C. Vaghela that Ishabhai Sandhi passed away on 05.03.1997. He made will on 24.02.1997 before few days of his death bequeathing the properties to the original plaintiffs-appellants. It was submitted that in the year 2006, the appellants made an application to the Mamlatdar's office for mutation of the entry in the land records and to transfer the properties of late Ishabhai Sandhi to their name on the basis of the said Will. The mutation entry no. 6008 was not certified by order dated 14.07.2006.

4.2 It was submitted that thereafter as late as in the year 2016, the appellants made application before the Court of learned Principal Civil Judge for getting probate and the said application was converted to Testamentary Suit No. 24/17 as per section 295 of the India Succession. According to submission of learned advocate for the respondents, the cause of action arose in the year 2006. According to his submission, the limitation period for obtaining probate certificate under Article 137 of the Limitation Act was 3 years. The application was therefore time barred, it was submitted. He submitted that right to apply accrued when the mutation was rejected and not certified.

4.3 It was submitted on behalf of the respondent that though Article 137 of the Limitation Act is applicable