CIVIL APPEAL NO. 1967 OF 2009 (Arising out of SLP (C) No.16110 of 2007)
Krishna Kumar Sharma ..Appellant
Rajesh Kumar Sharma ..Respondent
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by the Delhi High
Court which by the impugned order allowed the appeal filed by the
respondent. 3. Background facts in a nutshell are as follows:
Respondent, the propounder of the registered will dated 13th July,
1989 executed by his mother, has locked horns with his step brother,
Krishan Kumar Sharma, the appellant herein Smt. Sneh Prabha Sharma, the
testatrix, and her husband Ram Mohan Sharma were married twice.
Respondent is the son of testatrix and Ram Mohan Sharma. Appellant is the
son from the first wife of Ram Mohan Sharma. The respondent's case is
this that the will dated 13th July, 1989 was made by the above said testatrix
in sound disposing mind on 13th July, 1989 and it was got registered on 11th
September, 1989. Smt. Sneh Prabha Sharma died on 9th July, 1990. Except
the appellant, none of the other siblings of the appellant contested the
petition moved by the appellant under Section 276 of the Indian Succession
Act, 1925 (in short the `Act').
The basic question before the High Court was whether Article 137 of
the Indian Limitation Act, 1963 (in short the `Limitation Act') applies to the
facts of the present case. The High Court relied upon the judgments of
Delhi High Court in S.S. Lal v. Vishnu Mitter Govil [112 (2004) Delhi Law
Times 877 (DB)] and in Kanwal Malhotra v. State [125 (2005) Delhi Law
2 Times 281] to hold that Limitation Act has no application to proceedings
seeking for probate.
4. Learned counsel for the appellant submitted that the interpretation
placed by the High Court is not correct. The primary question that needs
reconsideration is whether Article 137 of the Limitation Act is applicable.
It appears that certain other aspects were considered by the High Court to
which reference shall be made subsequently.
5. In The Kerala State Electricity Board, Trivandrum v. T.P.
Kunhaliumma [1976 (4) SCC 634] it was inter alia observed as follows:
"18. The alteration of the division as well as the change in the collocation of words in Article 137 of the Limitation Act, 1963 compared with Article 181 of the 1908 Limitation Act shows that applications contemplated under Article 137 are not applications confined to the Code of Civil Procedure. In the 1908 Limitation Act there was no division between applications in specified cases and other applications as in the 1963 Limitation Act. The words "any other application" under Article 137 cannot be said on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act. But it has to be an application to a court for the reason that Sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when court is closed and extension of prescribed period if applicant or the appellant satisfies the court that he had sufficient cause