Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10482 OF 2013
Sameer Kapoor and another ..Appellants
Versus
The State through SubDivision Magistrate
South, New Delhi and others ..Respondents
J U D G M E N T
M.R. SHAH, J.
Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court of Delhi at New
Delhi in F.A.O(OS) No. 11 of 2009, by which a Division Bench of
the High Court has dismissed the said appeal and has confirmed
the order passed by the learned Single Judge refusing to reject
1
the plaint under Order VII Rule 11 of the CPC, the original
defendants have preferred the present appeal.
2. The brief facts leading to this appeal are, that one Smt.
Kailash Kapoor, a permanent resident of England, executed a will
dated 16.05.1990 bequeathing thereunder all her assets to two of
her grandchildren. That the said Smt. Kailash Kapoor died in
England on 10.09.2001. According to the appellants, they acted
upon the said will and disposed of all the immovable properties of
the aforesaid testatrix, possessed in India between 6.9.2000 to
March, 2001. That after the death of late Smt. Kailash Kapoor,
the High Court of Justice, District Probate Registry of
Birmingham, England and Wales issued a probate in respect of
the said will vide order dated 21.11.1997. It appears that
thereafter in the year 2001, respondent no.2 herein, at whose
instance the will was probated in England, applied for letters of
administration for property situated in Delhi by filing a
Testamentary Case under Section 228 of the Indian Succession
Act (hereinafter referred to as the ‘Act’) being Testamentary Case
No. 15 of 2001.
2.1 That the appellant herein filed I.A. No. 13895 of 2006
before the learned Single Judge of the High Court, praying to
2
reject the plaint under Order VII Rule 11 of the CPC on the
ground that the said Testamentary Case under Section 228 of the
Act, considering Article 137 of the Limitation Act, 1963, is barred
by the law of limitation. It was the case on behalf of the
appellants that though no limitation would apply seeking grant of
probate so long as a person has not approached the court and
will is probated, however, once the court at England and Wales
had been approached and a probate had been granted, no
petition for letters of administration could have been filed after a
lapse of a period of three years. The said application was
opposed by respondent no.2 herein – the original applicant. It
was submitted that Article 137 of the Limitation Act would not
apply.
3. The learned Single Judge vide order dated 24.09.2008
dismissed the said application and refused to reject the plaint
under Order VII Rule 11 of the CPC by observing that Section
228 of the Act is akin to provisions of Section 222 and 276 of the
Act and, therefore, when there is no period of limitation
prescribed for submitting an application under Section 222
and/or Section 276 of the Act, for submitting an application
under Section 228 of the Act, the period of limitation shall not be
3
applicable. Therefore, the learned Single Judge was of the opinion
that Article 137 of the Limitation Act shall have no application.
4. Feeling aggrieved and dissatisfied with the order
passed by the learned Single Judge rejecting the application to
reject the plaint under Order VII Rule 11 of the CPC, the
appellants herein approached the Division Bench of the High
Court by way of F.A.O(OS) No. 11 of 2009. By the impugned
judgment and order, the Division Bench of the High Court has
dismissed the said appeal and has confirmed the order passed by
the learned Single Judge rejecting the application under Order
VII Rule 11 of the CPC.
5. Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the Division Bench of the High
Court, the appellants – applicants original defendants have
preferred the present appeal.
6. Mr. Divyakant Lahoti, learned Advocate has appeared
for the appellants and Mr. M.A. Krishna Moorthy, learned
Advocate has appeared for respondent no.2.
6.1 Mr. Divyakant Lahoti, learned Advocate appearing on
behalf of the appellants has vehemently submitted that in the
facts and circumstances of the case, both the Division Bench as
4
well as the learned Single Judge have materially erred in not
rejecting the plaint under Order VII Rule 11 of the CPC.
6.2 It is vehemently submitted by the learned Advocate
appearing on behalf of the appellants that Article 137 of the
Limitation Act applies to any petition or application filed under
any Act before a Civil Court. It is submitted that it is not
confined to applications contemplated by or under the Code of
Civil Procedure. It is submitted that therefore, Article 137 of the
Limitation Act shall be applicable to the petitions under the
provisions of the Indian Succession Act also.
6.3 It is vehemently submitted by the learned Advocate
appearing on behalf of the appellants that till the will is unprobated, right to apply for probate is a continuous cause of
action, therefore, Article 137 of the Limitation Act shall not be
applicable on petitions for grant of probate and letters of
administration of a will, filed under Section 276 of the Act. It is
submitted that, however, once the will is probated, Article 137 of
the Limitation Act will apply to any right which arises on account
of probate of will. It is submitted that in such a case the right
accrues on the date of grant of probate, and therefore, the period
of limitation will commence from such date. In support of the
5
above submissions, learned Advocate appearing on behalf of the
appellants has heavily relied upon the decision of this Court in
the case of Kunvarjeet Singh Khandpur v. Kirandeep Kaur,
reported in (2008) 8 SCC 463 (Paragraphs 15 & 16).
6.4 It is submitted by the learned Advocate appearing on
behalf of the appellants that in the present case respondent no.2
had applied for grant of probate of will dated 16.05.1990,
executed by late Smt. Kailash Kapoor, before the High Court of
Justice, District Probate Registry, Birmingham (UK), which was
granted by the High Court vide order dated 21.11.1997. It is
submitted that therefore, the right to apply under Section 228 of
the Act can be said to have accrued in favour of respondent no.2
on 21.11.1997. It is submitted that whereas respondent no.2
had preferred an application for grant of letters of administration
of the aforesaid will dated 16.05.1990 under Section 228 of the
Act, by a Probate Case No. 15/2001, after a lapse of period of
three years as prescribed under Article 137 of the Limitation Act,
i.e., on 28.02.2001. It is submitted therefore the application
submitted by respondent no.2 under Section 228 of the Act is
clearly barred by law of limitation and therefore the same is liable
6
to be rejected considering Order VII Rule 11(d) of the CPC – the
applicant’s application being barred by limitation.
6.5 It is further submitted by the learned Advocate
appearing on behalf of the appellants that the learned Single
Judge has materially erred in observing that Section 228 of the
Act is akin to provisions of Sections 222 and 276 of the Act. It is
submitted that while coming to the aforesaid conclusion, the
learned Single Judge has not property construed and/or
considered the language of the two provisions, i.e., Section 228
and Section 276 of the Act. It is submitted that Sections 228 and
276 of the Act are totally different and operate under different
circumstances. It is submitted that an application under Section
228 of the Act would be maintainable only in a case where a will
has been proved/probated and deposited in a court of competent
jurisdiction. It is submitted that therefore a valid application
under Section 228 has to be necessarily filed on the basis of a
will that has already been proved, authenticated and probated by
a competent court in foreign jurisdiction. It is submitted that no
such precondition or prerequisite has been prescribed under
Section 276 of the Act. It is submitted that unlike Section 228 of
the Act, an application under Section 276 of the Act is to be filed
7
on the basis of a will which is unprobated and is being produced
before the court for the first time.
6.6 It is further submitted by the learned Advocate
appearing on behalf of the appellants that even the learned Single
Judge has also materially erred in observing that the object and
purpose of the two provisions is same, i.e., “to seek recognition in
respect of will in question”. It is submitted that language of
Section 228 of the Act makes it clear that a will in respect of
which letters of administration is sought to be granted under that
Section is an already recognized, proved or authenticated will,
unless rebutted. It is submitted that whereas the will in question
in an application under Section 276 of the Act is an unrecognised will which is being produced before the court for the
first time and which is yet to be proved.
6.7 It is further submitted by the learned Advocate
appearing on behalf of the appellants that even the scope of
enquiry under Sections 228 and 276 of the Act is distinguishable
and different. It is submitted that will under Section 276 of the
Act is unauthenticated and yet to be proved. It is submitted that
however the will under Section 228 of the Act is already proved
and authenticated before a foreign court or a competent court
8
mentioned in Section 228 of the Act. It is submitted that
therefore the scope of enquiry under Section 228 of the Act is a
limited exercise.
6.8 It is further submitted by the learned Advocate
appearing on behalf of the appellants that the Division Bench of
the High Court has erred in its reasoning that Probate Case No.
15/2001 is not barred by limitation because it is the first Probate
Petition filed in India, as the earlier Probate proceedings were in
the Court of England and Wales. It is submitted that the
Division Bench has materially erred in not properly appreciating
the fact that the administration of an estate in probate is an in
rem proceedings. It is submitted therefore the law of limitation is
applicable even if the previous probate proceedings were initiated
in a foreign jurisdiction as the same are in rem. It is submitted
that therefore, both the learned Single Judge as well as the
Division Bench have materially erred in dismissing the
application filed by the appellants herein under Order VII Rule 11
of the CPC.
6.9 In support of his above submissions, learned Advocate
appearing for the appellants has heavily relied upon the decision
of the Punjab and Haryana High Court in the case of Estate of
9
Late Shri Gurcharan Dass Puri, reported in AIR 1987 P&H 122, as
well as, the decision of the Patna High Court in the case of
Ramanand Thakur v. Parmanand Thakur, reported in AIR 1982
Patna 87.
6.10 Making the above submissions and relying upon the
aforesaid decisions of this Court, Punjab & Haryana High Court
and Patna High Court, it is prayed to allow the present appeal
and quash and set aside the orders passed by the learned Single
Judge and the Division Bench and consequently reject the plaint
under Order VII Rule 11(d) of the CPC.
7. The present appeal is vehemently opposed by the
learned Advocate appearing on behalf of respondent no.2. It is
vehemently submitted by the learned Advocate that in the facts
and circumstances of the case, both the learned Single Judge
and the Division Bench of the High Court have rightly held that
an application under Section 228 of the Act would not be barred
by limitation, inasmuch as Article 137 of the Limitation Act
would not be applicable.
7.1 It is vehemently submitted by the learned Advocate
appearing on behalf of respondent no.2 that the decision of this
Court in the case of Kunvarjeet Singh Khandpur (supra) shall not
10
be applicable to the facts of the case on hand, as before this
Court the petition was under Section 218/278 of the Act,
however, in the present case, the petition is under Section
228/276 of the Act.
7.2 It is further submitted by the learned Advocate
appearing on behalf of respondent no.2 that in the present case
as such the probate proceedings before the court in England was
never objected and there was no objection to the grant of probate.
It is submitted that, in fact, the father of the appellants and
respondent no.2 had given ‘No Objection’ to the said probate. It
is submitted that in law, respondent no.2 is not obligated to
apply for letters of administration in Delhi. It is submitted that
in the case where the probate is not objected to, respondent no.2
had no reason to seek the same as well. It is submitted that
therefore ‘right to apply’ under Article 137 of the Limitation Act, if
any, never accrued against respondent no.2. It is submitted that
both the learned Single Judge as well as the Division Bench have
rightly dismissed the application under Order VII Rule 11(d) of
the CPC and have rightly refused to reject the plaint.
7.3 Making the above submissions, it is prayed to dismiss
the present appeal.
11
8. We have heard the learned counsel for the respective
parties at length.
9. Two questions arise for consideration before this Court
in the present appeal:
i) Whether Article 137 of the Limitation Act shall be
applicable for application for grant of probate or letters of
administration?;
ii) Whether the application under Section 228 of the
Indian Succession Act shall be barred by the period of limitation
prescribed under Article 137 of the Limitation Act, and whether
the period of limitation for application under Section 228 of the
Act would start to run from the date of grant of probate by a
court of competent jurisdiction situated beyond the limits of the
State, whether within or beyond the limits of India?
10. Now so far as the first question is concerned, the same
is now not res integra in view of the direct decision of this Court
in the case of Kunvarjeet Singh Khandpur (supra) and in the case
of Krishan Kumar Sharma v. Rajesh Kumar Sharma reported in
(2009) 11 SCC 537. In both the aforesaid decisions, this Court
has specifically observed and held that Article 137 of the
Limitation Act shall be applicable to the petitions for grant of
12
probate or letters of administration also. Therefore, question
no.1 is answered in the affirmative and it is observed and held
that Article 137 of the Limitation Act, 1963 shall be applicable to
the applications for grant of probate or letters of administration.
11. Now so far as question no.2 is concerned, it is the
specific case on behalf of the appellants that the application
submitted by respondent No.2 for letters of administration under
Section 228 of the Act is barred by the law of limitation as
provided under Article 137 of the Limitation Act. As observed and
held hereinabove, Article 137 of the Limitation Act shall be
applicable to the application for grant of probate or letters of
administration submitted under Section 276 of the Act.
Similarly, even the application under Section 228 of the Act shall
also be covered by Article 137 of the Limitation Act. Therefore, it
is observed and held that Article 137 of the Limitation Act shall
be applicable to the applications under Section 228 of the Act
also.
12. However, the next question which is posed for
consideration before this Court is, when the ‘right to apply’ can
be said to have accrued?
13
12.1 As per Article 137 of the Limitation Act, the period of
limitation prescribed is three years and the three years begin to
run when the ‘right to apply’ accrues. The crucial expression
under Article 137 of the Limitation Act is ‘right to apply’. It is the
case on behalf of the appellants that in the present case the ‘right
to apply’ for letters of administration had accrued in the year
1997, more particularly on 21.11.1997 when the High Court of
Justice, District Probate Registry, Birmingham (UK) passed an
order for grant of probate of will dated 16.05.1990 in favour of
respondent no.2. It is the case on behalf of the appellants that
therefore ‘right to apply’ under Section 228 of the Act had
accrued in favour of respondent no.2 on 21.11.1997 and,
therefore, respondent no.2 was required to submit an application
for letters of administration within a period of three years from
21.11.1997. However, the application for letters of
administration has been submitted on 28.02.2001, i.e., after a
lapse of limitation of three years as prescribed under Article 137
of the Limitation Act and therefore Probate Case No. 15/2001 is
clearly barred by law of limitation and, therefore, the same was
required to be rejected in exercise of powers under Order VII Rule
11 of the CPC. It is also the case on behalf of the appellants that
14
so long as the will is not probated, the period of limitation would
not start running. However, once the will is probated, in that
case, the period of limitation as provided under Article 137 of the
Limitation Act would begin to run from the date on which the will
is probated.
13. We have heard the learned counsel for the respective
parties.
14. At the outset, it is required to be noted that the
relevant provisions for grant of probate or letters of
administration with the will would be Section 276 of the Act.
Section 276 of the Act reads as under:
“276.Petition for probate – (1) Application for probate
or for letters of administration, with the Will annexed,
shall be made by a petition distinctly written in English
or in the language in ordinary use in proceedings before
this Court in which the application is made, with the Will
or, in the cases mentioned in sections 237, 238 and 239,
a copy, draft, or statement of the contents thereof,
annexed, and stating—
(a) the time of the testator’s death,
(b) that the writing annexed is his last Will and
testament,
(c) that it was duly executed,
(d) the amount of assets which are likely to come to
the petitioner’s hands, and
15
(e) when the application is for probate, that the
petitioner is the executor named in the Will.
(2) In addition to these particulars, the petition shall
further state –
(a) when the application is to the District Judge, that
the deceased at the time of his death had a fixed place of
abode, or had some property, situate within the
jurisdiction of the Judge; and
(b) when the application is to a District Delegate, that
the deceased at the time of his death had a fixed place of
abode within the jurisdiction of such Delegate.
(3) Where the application is to the District Judge and nay
portion of the assets likely to come to the petitioner’s
hands is situate in another State, the petition shall
further state the amount of such assets in each State and
the District Judges within whose jurisdiction such assets
are situate.”
14.1 When an application under Section 276 of the Act is
submitted for probate or for letters of administration with will, if
any objection is raised by any body with respect to execution of
the will, in that case, the applicant is required to prove the will
and thereafter the will shall be probated and the court may pass
an order for letters of administration. However, in a case where a
will has been proved or deposited in a court of competent
jurisdiction situated beyond the limits of the State, whether
within or beyond the limits of India, in that case, as provided
under Section 228 of the Act, when a properly authenticated copy
16
of the will is produced, the letters of administration may be
granted in favour of such person. Meaning thereby, in such a
situation, the will is not required to be proved again and it shall
be conclusive. Therefore, Section 228 of the Act shall be an
enabling provision and it confers an additional right to apply for
letters of administration on the basis of such authenticated copy
of the will. Therefore, as rightly observed by the learned Single
Judge and the Division Bench that Section 228 is akin to Section
276 of the Act.
15. Now the next question which may arise for
consideration would be, whether for an application for probate or
letters of administration with will, the period of limitation would
begin to run from which date?
16. While considering the issue involved, the decision of
this Court in the case of Kunvarjeet Singh Khandpur(supra) is
required to be referred to and considered. In the said decision,
this Court considered the decision of the Bombay High Court in
the case of Vasudev Daulatram Sadarangani v. Sajni Prem
Lalwani reported in AIR 1983 Bom. 268, as well as, the decision of
the Madras High Court in the case of S. Krishnaswami v. E.
Ramiah, reported in AIR 1991 Mad. 214. In the said decision, this
17
Court referred to and considered paragraph 17 of the decision of
the Madras High Court in the case of S. Krishnaswami(supra),
which reads as under:
“17. In a proceeding, or in other words, in an application
filed for grant of probate or letters of administration, no
right is asserted or claimed by the applicant. The
applicant only seeks recognition of the court to perform a
duty. Probate or letters of administration issued by a
competent court is conclusive proof of the legal character
throughout the world. An assessment of the relevant
provisions of the Indian Succession Act, 1925 does not
convey a meaning that by the proceedings filed for grant
of probate or letters of administration, no rights of the
applicant are settled or secured in the legal sense. The
author of the testament has cast the duty with regard to
the administration of his estate, and the applicant for
probate or letters of administration only seeks the
permission of the court to perform that duty. There is
only a seeking of recognition from the court to perform
the duty. That duty is only moral and it is not legal.
There is no law which compels the applicant to file the
proceedings for probate or letters of administration. With
a view to discharge the moral duty, the applicant seeks
recognition from the court to perform the duty. It will be
legitimate to conclude that the proceedings filed for grant
of probate or letters of administration is not an action in
law. Hence, it is very difficult to and it will not be in order
to construe the proceedings for grant of probate or letters
of administration as applications coming within the
meaning of an ‘application’ under Article 137 if the
Limitation Act, 1963.”
18
16.1 This Court approved the observations made in
paragraph 17 by the Madras High Court in the case of S.
Krishnaswami (supra) insofar as the nature of the petition for
grant of probate or letter of administration is concerned.
However, this Court did not agree with the finding that the
application for grant of probate or letters of administration is not
covered by Article 137 of the Limitation Act.
16.2 In the aforesaid decision, this Court also considered
and referred to paragraph 16 of the decision of the Bombay High
Court in the case of Vasudev Daulatram Sadarangani (supra) in
paragraph 15, which reads as follows:
“16. Rejecting Mr. Dalpatrai’s contention, I summarise
my conclusions thus –
(a) Under the Limitation Act no period is advisedly
prescribed within which an application for probate,
letters of administration or succession certificate must be
made;
(b) The assumption that under Article 137 the right to
apply necessarily accrues on the date of the death of the
deceased, is unwarranted;
(c) Such an application 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;
19
(d) The right to apply would accrue when it becomes
necessary to apply which may not necessarily be within 3
years from the date of the deceased’s death;
(e) Delay beyond 3 years after the deceased’s death
would arouse suspicion and greater the delay, greater
would be the suspicion;
(f) Such delay must be explained, but cannot be
equated with the absolute bar of limitation; and
(g) Once execution and attestation are proved,
suspicion of delay no longer operates.”
This Court did not agree with/approve conclusion (b).
However, approved conclusion (c), reproduced hereinabove.
17. Therefore, considering the law laid down by this Court
in the case of Kunvarjeet Singh Khandpur (supra), it can be said
that in a proceeding, or in other words, in an application filed for
grant of probate or letters of administration, no right is asserted
or claimed by the applicant. The applicant only seeks recognition
of the court to perform a duty. Probate or letters of
administration issued by a competent court is conclusive proof of
the legal character throughout the world. That the proceedings
filed for grant of probate or letters of administration is not an
action in law but it is an action in rem. As held by this Court in
the case of Kunvarjeet Singh Khandpur (supra), an application
for grant of probate or letters of administration is for the
20
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.
Therefore, even if the will is probated by any court
mentioned in Section 228 of the Act, right to get the letters of
administration is a continuous right which can be exercised any
time, 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.
18. Applying the law laid down by this Court in the
aforesaid decision and the observations made hereinabove, the
submission on behalf of the appellants that Probate Case No.
15/2001 filed by respondent no.2 for letters of administration
under Section 228 of the Act, read with Section 276 of the Act is
barred by law of limitation, cannot be accepted. At this stage, it
is required to be noted that even in the plaint, it is specifically
pleaded that after passing away of the father of the parties in the
21
year 2000, the appellants started intermeddling with properties
bequeathed to respondent no.2, which were situated in Delhi
and, therefore, left with no option, he was compelled to apply for
letters of administration. Therefore, even as per the pleadings in
the application, the cause of action started from the date on
which the appellants started intermeddling with the properties
bequeathed to respondent no.2, after passing away of the father
of the parties in the year 2000. Therefore, in the facts and
circumstances of the case, both the learned Single Judge and the
Division Bench have rightly refused to reject the application in
exercise of powers under Order VII Rule 11 of the CPC. In the
facts and circumstances of the case and as observed
hereinabove, it cannot be said that the application for letters of
administration was clearly barred by the law of limitation which
was required to be rejected in exercise of powers under Order VII
rule 11(d) of the CPC. We are in complete agreement with the
view taken by the High Court.
19. In view of the above and for the reasons stated above,
the present appeal fails and the same deserves to be dismissed
and is accordingly dismissed. However, in the facts and
circumstances of the case, there shall be no order as to costs.
22
……………………………………J.
[L. NAGESWARA RAO]
NEW DELHI; …………………………………….J.
APRIL 29, 2019. [M.R. SHAH]
23
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10482 OF 2013
Sameer Kapoor and another ..Appellants
Versus
The State through SubDivision Magistrate
South, New Delhi and others ..Respondents
J U D G M E N T
M.R. SHAH, J.
Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court of Delhi at New
Delhi in F.A.O(OS) No. 11 of 2009, by which a Division Bench of
the High Court has dismissed the said appeal and has confirmed
the order passed by the learned Single Judge refusing to reject
1
the plaint under Order VII Rule 11 of the CPC, the original
defendants have preferred the present appeal.
2. The brief facts leading to this appeal are, that one Smt.
Kailash Kapoor, a permanent resident of England, executed a will
dated 16.05.1990 bequeathing thereunder all her assets to two of
her grandchildren. That the said Smt. Kailash Kapoor died in
England on 10.09.2001. According to the appellants, they acted
upon the said will and disposed of all the immovable properties of
the aforesaid testatrix, possessed in India between 6.9.2000 to
March, 2001. That after the death of late Smt. Kailash Kapoor,
the High Court of Justice, District Probate Registry of
Birmingham, England and Wales issued a probate in respect of
the said will vide order dated 21.11.1997. It appears that
thereafter in the year 2001, respondent no.2 herein, at whose
instance the will was probated in England, applied for letters of
administration for property situated in Delhi by filing a
Testamentary Case under Section 228 of the Indian Succession
Act (hereinafter referred to as the ‘Act’) being Testamentary Case
No. 15 of 2001.
2.1 That the appellant herein filed I.A. No. 13895 of 2006
before the learned Single Judge of the High Court, praying to
2
reject the plaint under Order VII Rule 11 of the CPC on the
ground that the said Testamentary Case under Section 228 of the
Act, considering Article 137 of the Limitation Act, 1963, is barred
by the law of limitation. It was the case on behalf of the
appellants that though no limitation would apply seeking grant of
probate so long as a person has not approached the court and
will is probated, however, once the court at England and Wales
had been approached and a probate had been granted, no
petition for letters of administration could have been filed after a
lapse of a period of three years. The said application was
opposed by respondent no.2 herein – the original applicant. It
was submitted that Article 137 of the Limitation Act would not
apply.
3. The learned Single Judge vide order dated 24.09.2008
dismissed the said application and refused to reject the plaint
under Order VII Rule 11 of the CPC by observing that Section
228 of the Act is akin to provisions of Section 222 and 276 of the
Act and, therefore, when there is no period of limitation
prescribed for submitting an application under Section 222
and/or Section 276 of the Act, for submitting an application
under Section 228 of the Act, the period of limitation shall not be
3
applicable. Therefore, the learned Single Judge was of the opinion
that Article 137 of the Limitation Act shall have no application.
4. Feeling aggrieved and dissatisfied with the order
passed by the learned Single Judge rejecting the application to
reject the plaint under Order VII Rule 11 of the CPC, the
appellants herein approached the Division Bench of the High
Court by way of F.A.O(OS) No. 11 of 2009. By the impugned
judgment and order, the Division Bench of the High Court has
dismissed the said appeal and has confirmed the order passed by
the learned Single Judge rejecting the application under Order
VII Rule 11 of the CPC.
5. Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the Division Bench of the High
Court, the appellants – applicants original defendants have
preferred the present appeal.
6. Mr. Divyakant Lahoti, learned Advocate has appeared
for the appellants and Mr. M.A. Krishna Moorthy, learned
Advocate has appeared for respondent no.2.
6.1 Mr. Divyakant Lahoti, learned Advocate appearing on
behalf of the appellants has vehemently submitted that in the
facts and circumstances of the case, both the Division Bench as
4
well as the learned Single Judge have materially erred in not
rejecting the plaint under Order VII Rule 11 of the CPC.
6.2 It is vehemently submitted by the learned Advocate
appearing on behalf of the appellants that Article 137 of the
Limitation Act applies to any petition or application filed under
any Act before a Civil Court. It is submitted that it is not
confined to applications contemplated by or under the Code of
Civil Procedure. It is submitted that therefore, Article 137 of the
Limitation Act shall be applicable to the petitions under the
provisions of the Indian Succession Act also.
6.3 It is vehemently submitted by the learned Advocate
appearing on behalf of the appellants that till the will is unprobated, right to apply for probate is a continuous cause of
action, therefore, Article 137 of the Limitation Act shall not be
applicable on petitions for grant of probate and letters of
administration of a will, filed under Section 276 of the Act. It is
submitted that, however, once the will is probated, Article 137 of
the Limitation Act will apply to any right which arises on account
of probate of will. It is submitted that in such a case the right
accrues on the date of grant of probate, and therefore, the period
of limitation will commence from such date. In support of the
5
above submissions, learned Advocate appearing on behalf of the
appellants has heavily relied upon the decision of this Court in
the case of Kunvarjeet Singh Khandpur v. Kirandeep Kaur,
reported in (2008) 8 SCC 463 (Paragraphs 15 & 16).
6.4 It is submitted by the learned Advocate appearing on
behalf of the appellants that in the present case respondent no.2
had applied for grant of probate of will dated 16.05.1990,
executed by late Smt. Kailash Kapoor, before the High Court of
Justice, District Probate Registry, Birmingham (UK), which was
granted by the High Court vide order dated 21.11.1997. It is
submitted that therefore, the right to apply under Section 228 of
the Act can be said to have accrued in favour of respondent no.2
on 21.11.1997. It is submitted that whereas respondent no.2
had preferred an application for grant of letters of administration
of the aforesaid will dated 16.05.1990 under Section 228 of the
Act, by a Probate Case No. 15/2001, after a lapse of period of
three years as prescribed under Article 137 of the Limitation Act,
i.e., on 28.02.2001. It is submitted therefore the application
submitted by respondent no.2 under Section 228 of the Act is
clearly barred by law of limitation and therefore the same is liable
6
to be rejected considering Order VII Rule 11(d) of the CPC – the
applicant’s application being barred by limitation.
6.5 It is further submitted by the learned Advocate
appearing on behalf of the appellants that the learned Single
Judge has materially erred in observing that Section 228 of the
Act is akin to provisions of Sections 222 and 276 of the Act. It is
submitted that while coming to the aforesaid conclusion, the
learned Single Judge has not property construed and/or
considered the language of the two provisions, i.e., Section 228
and Section 276 of the Act. It is submitted that Sections 228 and
276 of the Act are totally different and operate under different
circumstances. It is submitted that an application under Section
228 of the Act would be maintainable only in a case where a will
has been proved/probated and deposited in a court of competent
jurisdiction. It is submitted that therefore a valid application
under Section 228 has to be necessarily filed on the basis of a
will that has already been proved, authenticated and probated by
a competent court in foreign jurisdiction. It is submitted that no
such precondition or prerequisite has been prescribed under
Section 276 of the Act. It is submitted that unlike Section 228 of
the Act, an application under Section 276 of the Act is to be filed
7
on the basis of a will which is unprobated and is being produced
before the court for the first time.
6.6 It is further submitted by the learned Advocate
appearing on behalf of the appellants that even the learned Single
Judge has also materially erred in observing that the object and
purpose of the two provisions is same, i.e., “to seek recognition in
respect of will in question”. It is submitted that language of
Section 228 of the Act makes it clear that a will in respect of
which letters of administration is sought to be granted under that
Section is an already recognized, proved or authenticated will,
unless rebutted. It is submitted that whereas the will in question
in an application under Section 276 of the Act is an unrecognised will which is being produced before the court for the
first time and which is yet to be proved.
6.7 It is further submitted by the learned Advocate
appearing on behalf of the appellants that even the scope of
enquiry under Sections 228 and 276 of the Act is distinguishable
and different. It is submitted that will under Section 276 of the
Act is unauthenticated and yet to be proved. It is submitted that
however the will under Section 228 of the Act is already proved
and authenticated before a foreign court or a competent court
8
mentioned in Section 228 of the Act. It is submitted that
therefore the scope of enquiry under Section 228 of the Act is a
limited exercise.
6.8 It is further submitted by the learned Advocate
appearing on behalf of the appellants that the Division Bench of
the High Court has erred in its reasoning that Probate Case No.
15/2001 is not barred by limitation because it is the first Probate
Petition filed in India, as the earlier Probate proceedings were in
the Court of England and Wales. It is submitted that the
Division Bench has materially erred in not properly appreciating
the fact that the administration of an estate in probate is an in
rem proceedings. It is submitted therefore the law of limitation is
applicable even if the previous probate proceedings were initiated
in a foreign jurisdiction as the same are in rem. It is submitted
that therefore, both the learned Single Judge as well as the
Division Bench have materially erred in dismissing the
application filed by the appellants herein under Order VII Rule 11
of the CPC.
6.9 In support of his above submissions, learned Advocate
appearing for the appellants has heavily relied upon the decision
of the Punjab and Haryana High Court in the case of Estate of
9
Late Shri Gurcharan Dass Puri, reported in AIR 1987 P&H 122, as
well as, the decision of the Patna High Court in the case of
Ramanand Thakur v. Parmanand Thakur, reported in AIR 1982
Patna 87.
6.10 Making the above submissions and relying upon the
aforesaid decisions of this Court, Punjab & Haryana High Court
and Patna High Court, it is prayed to allow the present appeal
and quash and set aside the orders passed by the learned Single
Judge and the Division Bench and consequently reject the plaint
under Order VII Rule 11(d) of the CPC.
7. The present appeal is vehemently opposed by the
learned Advocate appearing on behalf of respondent no.2. It is
vehemently submitted by the learned Advocate that in the facts
and circumstances of the case, both the learned Single Judge
and the Division Bench of the High Court have rightly held that
an application under Section 228 of the Act would not be barred
by limitation, inasmuch as Article 137 of the Limitation Act
would not be applicable.
7.1 It is vehemently submitted by the learned Advocate
appearing on behalf of respondent no.2 that the decision of this
Court in the case of Kunvarjeet Singh Khandpur (supra) shall not
10
be applicable to the facts of the case on hand, as before this
Court the petition was under Section 218/278 of the Act,
however, in the present case, the petition is under Section
228/276 of the Act.
7.2 It is further submitted by the learned Advocate
appearing on behalf of respondent no.2 that in the present case
as such the probate proceedings before the court in England was
never objected and there was no objection to the grant of probate.
It is submitted that, in fact, the father of the appellants and
respondent no.2 had given ‘No Objection’ to the said probate. It
is submitted that in law, respondent no.2 is not obligated to
apply for letters of administration in Delhi. It is submitted that
in the case where the probate is not objected to, respondent no.2
had no reason to seek the same as well. It is submitted that
therefore ‘right to apply’ under Article 137 of the Limitation Act, if
any, never accrued against respondent no.2. It is submitted that
both the learned Single Judge as well as the Division Bench have
rightly dismissed the application under Order VII Rule 11(d) of
the CPC and have rightly refused to reject the plaint.
7.3 Making the above submissions, it is prayed to dismiss
the present appeal.
11
8. We have heard the learned counsel for the respective
parties at length.
9. Two questions arise for consideration before this Court
in the present appeal:
i) Whether Article 137 of the Limitation Act shall be
applicable for application for grant of probate or letters of
administration?;
ii) Whether the application under Section 228 of the
Indian Succession Act shall be barred by the period of limitation
prescribed under Article 137 of the Limitation Act, and whether
the period of limitation for application under Section 228 of the
Act would start to run from the date of grant of probate by a
court of competent jurisdiction situated beyond the limits of the
State, whether within or beyond the limits of India?
10. Now so far as the first question is concerned, the same
is now not res integra in view of the direct decision of this Court
in the case of Kunvarjeet Singh Khandpur (supra) and in the case
of Krishan Kumar Sharma v. Rajesh Kumar Sharma reported in
(2009) 11 SCC 537. In both the aforesaid decisions, this Court
has specifically observed and held that Article 137 of the
Limitation Act shall be applicable to the petitions for grant of
12
probate or letters of administration also. Therefore, question
no.1 is answered in the affirmative and it is observed and held
that Article 137 of the Limitation Act, 1963 shall be applicable to
the applications for grant of probate or letters of administration.
11. Now so far as question no.2 is concerned, it is the
specific case on behalf of the appellants that the application
submitted by respondent No.2 for letters of administration under
Section 228 of the Act is barred by the law of limitation as
provided under Article 137 of the Limitation Act. As observed and
held hereinabove, Article 137 of the Limitation Act shall be
applicable to the application for grant of probate or letters of
administration submitted under Section 276 of the Act.
Similarly, even the application under Section 228 of the Act shall
also be covered by Article 137 of the Limitation Act. Therefore, it
is observed and held that Article 137 of the Limitation Act shall
be applicable to the applications under Section 228 of the Act
also.
12. However, the next question which is posed for
consideration before this Court is, when the ‘right to apply’ can
be said to have accrued?
13
12.1 As per Article 137 of the Limitation Act, the period of
limitation prescribed is three years and the three years begin to
run when the ‘right to apply’ accrues. The crucial expression
under Article 137 of the Limitation Act is ‘right to apply’. It is the
case on behalf of the appellants that in the present case the ‘right
to apply’ for letters of administration had accrued in the year
1997, more particularly on 21.11.1997 when the High Court of
Justice, District Probate Registry, Birmingham (UK) passed an
order for grant of probate of will dated 16.05.1990 in favour of
respondent no.2. It is the case on behalf of the appellants that
therefore ‘right to apply’ under Section 228 of the Act had
accrued in favour of respondent no.2 on 21.11.1997 and,
therefore, respondent no.2 was required to submit an application
for letters of administration within a period of three years from
21.11.1997. However, the application for letters of
administration has been submitted on 28.02.2001, i.e., after a
lapse of limitation of three years as prescribed under Article 137
of the Limitation Act and therefore Probate Case No. 15/2001 is
clearly barred by law of limitation and, therefore, the same was
required to be rejected in exercise of powers under Order VII Rule
11 of the CPC. It is also the case on behalf of the appellants that
14
so long as the will is not probated, the period of limitation would
not start running. However, once the will is probated, in that
case, the period of limitation as provided under Article 137 of the
Limitation Act would begin to run from the date on which the will
is probated.
13. We have heard the learned counsel for the respective
parties.
14. At the outset, it is required to be noted that the
relevant provisions for grant of probate or letters of
administration with the will would be Section 276 of the Act.
Section 276 of the Act reads as under:
“276.Petition for probate – (1) Application for probate
or for letters of administration, with the Will annexed,
shall be made by a petition distinctly written in English
or in the language in ordinary use in proceedings before
this Court in which the application is made, with the Will
or, in the cases mentioned in sections 237, 238 and 239,
a copy, draft, or statement of the contents thereof,
annexed, and stating—
(a) the time of the testator’s death,
(b) that the writing annexed is his last Will and
testament,
(c) that it was duly executed,
(d) the amount of assets which are likely to come to
the petitioner’s hands, and
15
(e) when the application is for probate, that the
petitioner is the executor named in the Will.
(2) In addition to these particulars, the petition shall
further state –
(a) when the application is to the District Judge, that
the deceased at the time of his death had a fixed place of
abode, or had some property, situate within the
jurisdiction of the Judge; and
(b) when the application is to a District Delegate, that
the deceased at the time of his death had a fixed place of
abode within the jurisdiction of such Delegate.
(3) Where the application is to the District Judge and nay
portion of the assets likely to come to the petitioner’s
hands is situate in another State, the petition shall
further state the amount of such assets in each State and
the District Judges within whose jurisdiction such assets
are situate.”
14.1 When an application under Section 276 of the Act is
submitted for probate or for letters of administration with will, if
any objection is raised by any body with respect to execution of
the will, in that case, the applicant is required to prove the will
and thereafter the will shall be probated and the court may pass
an order for letters of administration. However, in a case where a
will has been proved or deposited in a court of competent
jurisdiction situated beyond the limits of the State, whether
within or beyond the limits of India, in that case, as provided
under Section 228 of the Act, when a properly authenticated copy
16
of the will is produced, the letters of administration may be
granted in favour of such person. Meaning thereby, in such a
situation, the will is not required to be proved again and it shall
be conclusive. Therefore, Section 228 of the Act shall be an
enabling provision and it confers an additional right to apply for
letters of administration on the basis of such authenticated copy
of the will. Therefore, as rightly observed by the learned Single
Judge and the Division Bench that Section 228 is akin to Section
276 of the Act.
15. Now the next question which may arise for
consideration would be, whether for an application for probate or
letters of administration with will, the period of limitation would
begin to run from which date?
16. While considering the issue involved, the decision of
this Court in the case of Kunvarjeet Singh Khandpur(supra) is
required to be referred to and considered. In the said decision,
this Court considered the decision of the Bombay High Court in
the case of Vasudev Daulatram Sadarangani v. Sajni Prem
Lalwani reported in AIR 1983 Bom. 268, as well as, the decision of
the Madras High Court in the case of S. Krishnaswami v. E.
Ramiah, reported in AIR 1991 Mad. 214. In the said decision, this
17
Court referred to and considered paragraph 17 of the decision of
the Madras High Court in the case of S. Krishnaswami(supra),
which reads as under:
“17. In a proceeding, or in other words, in an application
filed for grant of probate or letters of administration, no
right is asserted or claimed by the applicant. The
applicant only seeks recognition of the court to perform a
duty. Probate or letters of administration issued by a
competent court is conclusive proof of the legal character
throughout the world. An assessment of the relevant
provisions of the Indian Succession Act, 1925 does not
convey a meaning that by the proceedings filed for grant
of probate or letters of administration, no rights of the
applicant are settled or secured in the legal sense. The
author of the testament has cast the duty with regard to
the administration of his estate, and the applicant for
probate or letters of administration only seeks the
permission of the court to perform that duty. There is
only a seeking of recognition from the court to perform
the duty. That duty is only moral and it is not legal.
There is no law which compels the applicant to file the
proceedings for probate or letters of administration. With
a view to discharge the moral duty, the applicant seeks
recognition from the court to perform the duty. It will be
legitimate to conclude that the proceedings filed for grant
of probate or letters of administration is not an action in
law. Hence, it is very difficult to and it will not be in order
to construe the proceedings for grant of probate or letters
of administration as applications coming within the
meaning of an ‘application’ under Article 137 if the
Limitation Act, 1963.”
18
16.1 This Court approved the observations made in
paragraph 17 by the Madras High Court in the case of S.
Krishnaswami (supra) insofar as the nature of the petition for
grant of probate or letter of administration is concerned.
However, this Court did not agree with the finding that the
application for grant of probate or letters of administration is not
covered by Article 137 of the Limitation Act.
16.2 In the aforesaid decision, this Court also considered
and referred to paragraph 16 of the decision of the Bombay High
Court in the case of Vasudev Daulatram Sadarangani (supra) in
paragraph 15, which reads as follows:
“16. Rejecting Mr. Dalpatrai’s contention, I summarise
my conclusions thus –
(a) Under the Limitation Act no period is advisedly
prescribed within which an application for probate,
letters of administration or succession certificate must be
made;
(b) The assumption that under Article 137 the right to
apply necessarily accrues on the date of the death of the
deceased, is unwarranted;
(c) Such an application 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;
19
(d) The right to apply would accrue when it becomes
necessary to apply which may not necessarily be within 3
years from the date of the deceased’s death;
(e) Delay beyond 3 years after the deceased’s death
would arouse suspicion and greater the delay, greater
would be the suspicion;
(f) Such delay must be explained, but cannot be
equated with the absolute bar of limitation; and
(g) Once execution and attestation are proved,
suspicion of delay no longer operates.”
This Court did not agree with/approve conclusion (b).
However, approved conclusion (c), reproduced hereinabove.
17. Therefore, considering the law laid down by this Court
in the case of Kunvarjeet Singh Khandpur (supra), it can be said
that in a proceeding, or in other words, in an application filed for
grant of probate or letters of administration, no right is asserted
or claimed by the applicant. The applicant only seeks recognition
of the court to perform a duty. Probate or letters of
administration issued by a competent court is conclusive proof of
the legal character throughout the world. That the proceedings
filed for grant of probate or letters of administration is not an
action in law but it is an action in rem. As held by this Court in
the case of Kunvarjeet Singh Khandpur (supra), an application
for grant of probate or letters of administration is for the
20
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.
Therefore, even if the will is probated by any court
mentioned in Section 228 of the Act, right to get the letters of
administration is a continuous right which can be exercised any
time, 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.
18. Applying the law laid down by this Court in the
aforesaid decision and the observations made hereinabove, the
submission on behalf of the appellants that Probate Case No.
15/2001 filed by respondent no.2 for letters of administration
under Section 228 of the Act, read with Section 276 of the Act is
barred by law of limitation, cannot be accepted. At this stage, it
is required to be noted that even in the plaint, it is specifically
pleaded that after passing away of the father of the parties in the
21
year 2000, the appellants started intermeddling with properties
bequeathed to respondent no.2, which were situated in Delhi
and, therefore, left with no option, he was compelled to apply for
letters of administration. Therefore, even as per the pleadings in
the application, the cause of action started from the date on
which the appellants started intermeddling with the properties
bequeathed to respondent no.2, after passing away of the father
of the parties in the year 2000. Therefore, in the facts and
circumstances of the case, both the learned Single Judge and the
Division Bench have rightly refused to reject the application in
exercise of powers under Order VII Rule 11 of the CPC. In the
facts and circumstances of the case and as observed
hereinabove, it cannot be said that the application for letters of
administration was clearly barred by the law of limitation which
was required to be rejected in exercise of powers under Order VII
rule 11(d) of the CPC. We are in complete agreement with the
view taken by the High Court.
19. In view of the above and for the reasons stated above,
the present appeal fails and the same deserves to be dismissed
and is accordingly dismissed. However, in the facts and
circumstances of the case, there shall be no order as to costs.
22
……………………………………J.
[L. NAGESWARA RAO]
NEW DELHI; …………………………………….J.
APRIL 29, 2019. [M.R. SHAH]
23
