Form No. J(2)

In the High Court at Calcutta Civil Appellate Jurisdiction Appellate Side Present: The Hon’be Justice Sabyasachi Bhattacharyya And The Hon’ble Justice Uday Kumar F.A. 15 of 2019 IA No: CAN 5 of 2024 Achin Ghosh and others Vs.

Debashis Sengupta, in place of Jyotirmoyeee Sengupta (since deceased) and another For the appellant : Mr. Sourav Sen Mr. Diptomoy Talukder Mr. Triptimoy Talukdar Ms. Archita Chel Mr. Abhiraj Tarafder For the respondent no.1(b) : Mr. Washim Akhtar Dafader Heard on : 20.03.2025 Judgment on : 20.03.2025 Sabyasachi Bhattacharyya, J.:-

1. The present appeal has been preferred against a judgment whereby the letters of administration proceeding filed at the behest of the appellants was dismissed on the sole ground of limitation.

2. Mr. Sen, learned senior counsel appearing for the appellants, argues that the rigours of Article 137 of the Limitation Act are not applicable strictly in probate proceedings and in respect of proceedings for grant of letters of administration.

3. Learned senior counsel cites Sameer Kapoor and another vs.

State thorugh Sub-Division Magistrate South, New Delhi and others reported at (2020) 12 SCC 480 in support of the proposition that a testamentary application, either for probate or letters of administration, is for the court’s permission to perform a legal duty created by a Will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed.

4. It was further held that the right to apply would accrue when it becomes necessary to apply, which may not necessarily be within three years from the date of the deceased’s death.

5. Delay beyond three years after the deceased’s death, it was observed by the Supreme Court, would arouse suspicion and the greater the delay, the greater would be the suspicion.

6. Such delay must be explained, but cannot be equated with the absolute bar of limitation.

7. Learned senior counsel further argues that upon a previous application for grant of probate filed by the executor in respect of the self-same Will having been dismissed for default, the present appellants, the beneficiaries of the said Will, were in the dark as to the said proceedings.

8. Ultimately, upon conducting a search of the case records through a learned advocate, the appellants came to know that the said probate proceeding had been dismissed on April 26, 2006.

9. As such, having no other alternative, the appellants sent a registered letter at the address of the executor of the Will but the same returned with a postal endorsement on the envelope “deceased”.

10. Being thus compelled, the present appellants took out the application for letters of administration at the earliest thereafter and as such, for the purpose of the present application, the right to sue accrued in favour of the appellants as and when they learnt of the dismissal for default of the previous probate proceeding.

11. Learned senior counsel next contends that the dismissal of the previous probate proceeding under Order IX Rule 9 of the Code of Civil Procedure would not operate as a bar under the said provision, nor would it operate as a bar of res judicata.

12. In support of such contention, learned senior counsel cites a judgment of a learned Single Judge of this court in the matter of In the Goods of Samarendra Nath Bal, deceased reported at (2010) 1 CHN 782.

13. The appellants next argue that the widow of the deceased testator had appeared in the probate proceeding and had expressed her consent to the grant of probate.

14. Subsequently, notice of the present proceedings for letters of administration were also served on the said widow of the deceased testator but she did not contest.

15. Upon the widow of the testator having later met her demise, the present respondents were substituted in her place and stead as her sol