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CALCUTTA HIGH COURT
Moushumi Bhattacharya, J.
Hanuman Prasad Agarwal @ Hanuman Prosad Agarwal and Anr. —Plaintiffs
versus
Satyanarain Agarwal and Ors. Defendants
G.A. No.990 of 2018 with T.S. No.7 of 2016
Decided on 11.6.2020.
For the Plaintiffs:Mr. Ranjan Bachawat, Sr. Advocate, Mr. Krishnaraj Thaker, Mr. Avinash Kankani and Mr. Suman Majumder, Advocates
For the Defendant No.1:Mr. Abhrajit Mitra, Sr. Advocate, Mr. Satadeep Bhattacharyya, Mr. Niladri Bhattacharjee and Ms. Deblina Chattaraj, Advocates
IMPORTANT POINT
Even if executor does not apply for grant of probate, a beneficiary to a Will does not lose any valuable right bequeathed to him by testator since probate relates back to date of death of testator.
Headnote:
(A) Indian Succession Act, 1925 – Section 276 read with Sections 211 and 213 – Limitation Act, 1963 – Article 137 – Application for grant of Probate – Time-barred application – A party may apply when a challenge is made to a Will or a dispute arises in relation thereto – There is no outer limit for filing application for probate and time starts running from the date when right to apply accrues – Besides particulars stated in the section, there is no requirement of any further particulars or pleadings in an application for grant of probate – Procedural requirements of CPC are to be followed only in contentious causes – If right to apply for probate is seen as a continuing right, construing Article 137 as bringing down curtain to such a right after 3 years cannot stand to reason and would frustrate very object of law preserving wishes of a testator – Importing provisions of Limitation Act in a manner which would frustrate last wish of deceased cannot also be intention of Legislature since decision of a Probate Court is a judgment in rem not only binding upon parties to probate proceeding but binding on whole world – Even if executor does not apply for grant of probate, a beneficiary to a Will does not lose any valuable right bequeathed to him by testator since probate relates back to date of death of testator – Since Court is not inclined to accept that application for probate is time-barred, other objections with regard to compliance of Order VII Rule 6 and Order IV Rule 1 of CPC are not relevant – Doctrine of Repose is also not relevant since application for grant of probate was filed within time – Application dismissed. (Paras 7, 8, 13, 16, 17 and 19)
(B) Civil Procedure Code, 1908 – Order VII Rule 11 – Rejection of plaint – Application under Order VII Rule 11 of CPC for rejection of a plaint can only succeed if applicant is able to make out a case of plaint falling foul of any of infirmities under Sub-Rules (a) to (f) – Plaint must contain a statement which would give rise to presumption of suit being barred by law – In this case, plaint does not disclose any statement which would attract Order VII Rule 11 (d) of CPC. (Para 18)
Result: Application dismissed.
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 13th June 1993. The last Will and Testament was signed by the testator on 16th 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 8th September 2014. The present application for rejection of the probate proceedings was filed on 8th 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 v. Kirandeep Kaur reported in (2008) 8 SCC 463; Krishan Kumar Sharma v. Rajesh Kumar Sharma, (2009) 11 SCC 537 and Paritosh Patra v. Angur Bala Rana, AIR 2014 Cal 133 and Ramesh Nivrutti Bhagwat v. 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 13th June 1993, the application for his last Will and testament dated 16th 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 v. Ponniamman Educational Trust reported in (2012) 8 SCC 706. Reliance is placed on Harsh Vardhan Lodha v. Ajay Kumar Newar, (2016) 120(2) CWN 673; Umesh Chandra Saxena v. 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 5th 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. v. Dhanraji (Smt.) (Dead) reported in (2000) 7 SCC 702 and GPT Healthcare Pvt Ltd v. 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. Counsel cites State of K
