OP.No.591 of 2022

N THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on

16.06.2023

Delivered on

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

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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

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OP.No.591 of 2022

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.

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OP.No.591 of 2022

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