N THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on Delivered on

16.06.2023 26.06.2023 CORAM THE HONOURABLE MR.JUSTICE K.KUMARESH BABU O.P.No.591 of 2022 K.Praveen Kumar alias K.Praveen ... Petitioner vs.

Mr.K.Vasantha Rajan … Respondent PRAYER: Original Petition filed under Section 232 and 276 of Part X of the Indian Succession Act, and under Order XXXIX of 1925 and under Order XXV, Rule 5 of the Original Side Rules, prays that the Letter of Administration will the WILL annexed may be granted to the petitioner as the next of kin, younger son, the legatee and under the WILL of the said deceased to have effect throughout the State of Tamilnadu.

For Petitioners : Mr.M.Kamalakannan For Respondents : Mr.N.S.Manoharan for Mr.I.Lakshmana Shankar

ORDER

Heard Mr.M.Kamalakannan, learned counsel appearing for the petitioner and Mr.N.S.Manoharan, learned counsel appearing for Mr.I.Lakshmana Shankar for the respondent.

2. The Original Petition had been listed before this Court after recording of the service and also the general paper publication that was effected. It is seen that a caveat had been filed by the respondent along with the affidavit complying the provisions of Order 25 Rules 51 & 52.

3. The learned counsel appearing for the Caveator apart from filing the caveat would oppose the Original Petition taking enormous effort to submit that the Original Petition itself is not maintainable as the same had been filed beyond the period of three months from the date of death of the testator. He would also heavily rely upon the judgment of the learned Single Judge of this Court in the case of Sakunthala vs. Minor Vijayalakshmi & Ors., reported in 1989 TLNJ 333. He would also refer to the judgment of the Hon'ble Apex Court in the case of The Kerala State Electricity Board, Trivandrum vs. T.P.Kunhaliumma reported in (1976) 4 SCC 634, which had been relied upon by the learned single Judge of this Court in holding that the Original Petitions under the Indian Succession Act should also be filed within the period of

3 years. Referring upon the aforesaid judgment, the learned counsel appearing for the Caveator would submit that the testator died in the year 2015 and the present petition had been filed only in the year 2022, which is beyond the period of three years. The learned counsel had also relied upon the judgment of the Hon'ble Apex Court in the case of Kunvarjeet Singh Khandpur vs. Kirandeep Kaur & Ors reported in (2008) 8 SCC 463, to contend that the provisions of Limitation Act particularly, Article

137 would be applicable to the present proceedings.

4. On the other hand, the learned counsel appearing for the petitioner in the Original Petition would rely upon the judgment of the Hon'ble Division Bench in the case of S.Vatsala vs. K.S.Mohan & Ors., in O.S.A.Nos.10 and 72 of 2013, dated 07.01.2016 and contend that the provisions of Article 137 of the Limitation Act would not be applicable in a probate proceedings.

5. I have considered the rival submissions made on either side and perused the materials placed on record.

6. It is an admitted fact that a caveat had been filed by the respondent disputing the execution of the WILL. He has also relying upon the judgment of the learned Single Judge following the judgment of the Hon'ble Apex Court had contended that the Limitation Act would be applicable even to an Original Petition under the Indian Succession Act. However, the learned counsel appearing for the Original Petitioner had relied upon the judgment of the Division Bench of this Court to submit that the Article 137 of the Limitation Act would not be applicable to the Original Petition under the Indian Succession Act.

7. A thorough reading of the judgment of the Division Bench of this Court which was relied upon by the learned counsel for the petitioner would show that the Hon'ble Division Bench had extensively considered various judgments of the Hon'ble Apex Court and also other High Courts including the judgment relied upon by the learned counse