K. L. SHRIVASTAVA, J.

( 1 ) THIS appeal under S. 299 of the Succession Act, 1928 (for short 'the Succession Act') is directed against the order Dt/-12-12-1987 passed by the Additional Judge to the District Judge, Indore, at Mhow, dismissing the appellant's application under S. 276 ibid for grant of Probate, on the finding that it is barred under Art. 137 of the LIMITATION ACT, 1963, 1963 (for short 'the LIMITATION ACT, 1963' ).

( 2 ) CIRCUMSTANCES giving rise to this appeal are there. The appellant Balwant filed an application before the learned lower Court on 26-4-80 under S. 276 of the Succession Act for grant of Probate stating that Bonder who died on 24-12-73 had executed a Will Dt/-20-9-1973 and thereunder he is the legatee and also the executor.

( 3 ) THE aforesaid application was opposed by respondent Mainabai who is the widow of Kanhaiyalal, pre-deceased son of Bonder. According to her the Will is a forged one.

( 4 ) IT was also urged on behalf of the respondent that in the mutation proceedings under the M. P. Land Revenue Code, 1959 (for short 'the Revenue Code') the Will has been found to be a forged one and this decision operates as res judicata.

( 5 ) ON the contentions canvassed by the Parties, the learned lower Court framed two preliminary issues, one regarding the bar of res judicata and the other regarding the bar of limitation.

( 6 ) BY the impugned order the learned lower Court has held that the decision of the Revenue Court does not operate as res judicata. On the issue regarding limitation it held that the application not having been filed within 3 years of the death of Bonder; was under Art. 137 of the LIMITATION ACT, 1963, impugned order came to be passed.

( 7 ) THE contention of the learned counsel for the appellant is that the learned lower Court erred in holding that an application for grant of Probate is governed by Art. 137 of the LIMITATION ACT, 1963. According to the learned counsel the LIMITATION ACT, 1963 does not deal with enforcement of right under a Will and the right to apply for a Probate accrues from day to day so long as the Will remains un-probated. In support of his submission he placed reliance on the decisions in Shobha v. Janki, 1988 MPLJ 28 and Ramanand Thakur's case, AIR 1982 Patna 87.

( 8 ) THE point for consideration is whether the appeal deserves to be allowed.

( 9 ) IT may be stated at the outset that the respondent's contention that as attesting witnesses; are dead the Will can in no circumstance be proved is wholly devoid of merit. A plain perusal of S. 68 of the Evidence Act shows that the requirement of examining at least one attesting witness is to be fulfilled 'if there be an attesting witness alive'. Where the attesting witnesses are dead the will can certainly be proved in the manner provided for proof of a document.

( 10 ) THE next contention of the respondent's learned counsel that this miscellaneous appeal is incompetent and the appellant ought have filed a regular appeal, must also fail. S. 295 of the Succession Act provides that in any case in which there is contest the proceedings shall have, as nearly as may be, the form of a regular suit, according to the provisions of the Civil P. C. , 1908 (for short 'the Code' ). Section 299 of the Succession Act which provides for appeal is in these terms :-"every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to appeals. "

( 11 ) REFERENCE at this stage may be made to S. 104 of the Code which relates to appeals from orders. Sub-section (1) thereof expressly enumerates certain orders under the Code and reads as under :-"an appeal shall lie from the following orders and save as otherwise expressly provided in the body of the Code or by any law for the time being in force, from no other orders. "order, 43 R. 1 of the Code provides that an appeal shall lie fr

Click Here to Read the rest of this document