Probate
Querist :
Anonymous
(Querist) 20 December 2011
This query is : Resolved
Learned Advocates,
Please advise on the following:-
My father passed away 15 years ago leaving behind a registered will. Till last 15 years the legal heirs followed the will for mutation,and all other legal matters.There are also undertakings given by them by them.
But now one legal heir has hatched a conspiracy and wants to derail the probate of registered will. He is taking a contradictory stand in comparison to the last 15 years.He is also trying to influence another legal heir for his ulterior motives.
I have heard of "delays & laches". Can learned advocates advise as to how this matter can bounce back on the one or two legal heirs who isn't/aren't following it now because of his/their ulterior motives and collusion and connivance with outside builders etc.They didn't initiate any action earlier.ANY JUDGMENT WILL BE HIGHLY APPRECIATED.
Thanks
Devajyoti Barman
(Expert) 20 December 2011
For obtaining Probate there is no time frame.
So no amount of delay would be considered as laches on your part.
To put the dispute at rest for good, file application for probate soon.
prabhakar singh
(Expert) 20 December 2011
I am sorry to disagree with Mr.Barman whom I often confirm because here Part II Article 137 of Limitation Act shall apply which reads as"PART II
Other applications
137.
Any other application for which no period of limitation is provided elsewhere in this Division.
3 yrs
When the right to apply accrues.
Devajyoti Barman
(Expert) 20 December 2011
Dear Mr Singh, I reiterate for obtaining Probate it is a continuing cause of action and one can apply for Probate simply at any point of time.
I personally got Probate in more than couple of cases where the it was made after more than decade.
Moreover application for Probate is not a suit but when it becomes contentious in the event of any challenges made by any of the heirs, it does become Original Suit.
prabhakar singh
(Expert) 20 December 2011
And it is the right to sue when accrues is the twisting point.Probate can be granted to only the person appointed as Executor in the Will.However he is not obliged in law to act as an executor and he can refuse but if he chooses to act then limitation would be 03 years from the date of death of testator of will coming to the knowledge of executor and in cases he declined to act beneficiaries may move for Letters of Administration with in 03 years from the date executor refuses to act is my personal view.
Any one can correct me if citations binding upon me opposes my view.
prabhakar singh
(Expert) 20 December 2011
And i my self have found it.
Kunvarjeet Singh Khandpur v. Kirandeep Kaur, (2008) 8 SCC 463
Succession Act, 1925
Ss. 276, 278, 264 and 2(bb) - Application before District Judge for grant of probate or letters of administration -
Limitation - Art. 137 of Limitation Act applies - Right to file the application is a continuing right which can be exercised at
any time after death of testator - Application merely seeks recognition from court to perform a duty - In view of S. 2(bb),
which defines District Judge to be Judge of Principal Civil Court, application under S. 264 for granting or revoking probate
or letters of administration is covered by Art. 137, (2008) 8 SCC 463-A
Limitation
Limitation Act, 1963
Art. 137 - ``Right to apply'' - When accrues - Limitation period for filing application for grant of letters of administration in
respect of a will when commenced - Petition for grant of probate in respect of a will filed by Respondent 5 in Court of
District Judge but subsequently withdrawn - Application filed by Respondents 1 to 3 for being transposed as applicants in
the probate petition - Application dismissed with liberty to initiate appropriate proceedings - Petition for grant of letters of
administration filed within three years from the date of withdrawal of probate petition - Held, not barred by limitation,
(2008) 8 SCC 463-B
prabhakar singh
(Expert) 20 December 2011
As in UP a probate is not a necessity it becomes a little different while chasing law on topic.
ajay sethi
(Expert) 20 December 2011
Court
Supreme Court of India
Brief
The right to apply actually arose on 9.8.1999 when the proceedings were withdrawn by Smt. Nirmal Jeet Kaur. Since the petition was filed within three years, the same was within time.
Citation
2008(2)SCCD744(S.C.)
Judgement
CASE NO.:
Appeal (civil) 2464 of 2008
PETITIONER:
Kunvarjeet Singh Khandpur
RESPONDENT:
Kirandeep Kaur & Ors
DATE OF JUDGMENT: 03/04/2008
BENCH:
Dr. ARIJIT PASAYAT & P.SATHASIVAM
JUDGMENT:
J U D G M E N T
REPORTABLE
CIVIL APPEAL NO 2464 of 2008
(Arising out of SLP(C) No. 12488/2006)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a learned Single Judge of the Delhi High Court dismissing the Civil Revision Petition filed by the appellant. By the impugned order the view expressed by learned Additional District Judge deciding a preliminary issue was upheld. Learned Additional District Judge had held that the petition for grant of Letters of Administration of Will dated 9.9.1991 purportedly executed by late Sh. Mohinder Singh Khandpur was not barred by limitation and was maintainable.
3. The factual position needs to be noted in a nutshell as an interesting question of law is involved for the resolution of which factual details are not relevant.
4. Appellant's stand all through was that the testator-Mohinder Singh Khandpur has expired on 5.10.1995 and the
petition under Section 278 of the Indian Succession Act, 1925 (in short the 'Act') for grant of Letters of Administration was filed on 7.8.2002, and therefore, the same was barred by limitation. Learned Additional District Judge after referring to Section 232 of the Act held that the cause of action in favour of the respondent Nos. 1 to 3 had arisen only when the Probate Petition No. 22 of 1996 filed by Ms. Nirmal Jeet Kaur- respondent No. 5 was withdrawn on 9.8.1999 and therefore the Petition for grant of Letters of Administration filed on 7.8.2002 was filed within three years and therefore was within time.
5. The order was challenged before the High Court.
Appellant's stand was that Article 137 of the Limitation Act, 1963 (in short 'Limitation Act') had application. It was submitted that Article 137 of the Limitation Act has clear application and the application for grant of letters of Administration was filed beyond the speculated time.
6. The High Court observed that Article 137 of the
Limitation Act does not apply to proceedings or grant of
Probate/Letters of Administration and therefore the view of the learned Additional District Judge was correct. Reliance was placed on a Division Bench of the Delhi High Court in the case of S.S. Lal v. Vishnu Mittal Goel [112 (2004)DLT 877]
7. The High Court noted that there was no dispute that
Mrs. Nirmal Jeet Kaur had filed a Probate Petition in the court of District Judge which was numbered as Probate Case No. 22 of 1996 for grant of Probate in respect of will dated 9.9.1991 after the death of Mohinder Singh Khandpur. The said petition was withdrawn on 9.8.1999. An application was filed by the present respondent Nos. 1 to 3 for being transposed as applicants in the application but the said application was dismissed with right and liberty granted to the present respondent nos. 1 to 3 to initiate appropriate proceedings.
8. In support of the appeal, learned counsel for the
appellant submitted that the High Court's view that Article
137 of the Limitation Act was not applicable is incorrect. It is submitted that right to apply in terms of Article 137 accrued when there was a dispute about genuineness of the Will.
Therefore it was submitted that the view of the High Court is clearly unsustainable.
9. On the other hand, learned counsel for the
respondents submitted that the right to apply for grant of
Letters of Administrations is a continuing right and the
starting point is the happening of an event. In the instant case, after the petition for grant of probate was withdrawn the event arose. Further while permitting withdrawal, liberty was granted to the present respondent nos. 1 to 3 to initiate appropriate proceedings.
10. Two questions need to be addressed in this appeal.
Firstly, about the applicability of Article 137 of the
Limitation Act and secondly even if it is applicable
whether the petition was within time.
11. 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 for not preferring the appeal or making the application during such period.
22. The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil court. With respect
we differ from the view taken by the two-
judge bench of this Court in Athani Municipal Council case2 and hold that Article 137 of the 1963 Limitation Act is not
confined to applications contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a court. The petition was
one contemplated by the Telegraph Act for judicial decision. The petition is an application falling within the scope of Article 137 of the 1963 Limitation Act."
12. In terms of the aforesaid judgment any application
to Civil Court under the Act is covered by Article 137.
The application is made in terms of Section 264 of the
Act to the District Judge. Section 2(bb) of the Act defines the District Judge to be Judge of Principal Civil Court.
13. Further in S.S. Rathore v. State of M.P. [1989(4)
SCC 582] it was inter-alia stated as follows:
"5. Appellant's counsel placed before us the residuary Article 113 and had referred to a few decisions of some High Courts where in a situation as here reliance was
placed on that article. It is unnecessary to refer to those decisions as on the authority of the judgment of this Court in the case of Pierce Leslie & Co. Ltd. v. Violet
Ouchterlony Wapshare3 it must be held that Article 113 of the Act of 1963, corresponding to Article 120 of the old Act, is a general one and would apply to suits to which no other article in the schedule applies."
14. Article 137 of the Limitation Act reads as follows:
"137. Description of application: Any other application for which no period of limitation is provided elsewhere in the Division.
Period of Limitation: Three Years
Time from which period begins to run:
When the right to apply accrues."
The crucial expression in the petition is "right to apply". In view of what has been stated by this Court, Article 137 is clearly applicable to the petition for grant of Letters of Administration. As rightly observed by the High Court in such proceedings the application merely seeks recognition from the Court to perform a duty because of the nature of the proceedings it is a continuing right. The Division Bench of the Delhi High Court referred to several decisions. One of them was S. Krishnaswami and etc. etc. v. E. Ramiah (AIR 1991 Madras 214). In para 17 of the said judgment it was noted as follows:
"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 letter 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 Art. 137 of the Limitation Act,
1963."
15. Though the nature of the petition has been rightly
described by the High Court, it was not correct in observing that the application for grant of probate or letters of Administration is not covered by Article 137 of the Limitation Act. Same is not correct in view of what has been stated in The Kerala State Electricity Board's case (supra).
16. Similarly reference was made to a decision of the
Bombay High Court's case in Vasudev Daulatram
Sadarangani v Sajni Prem Lalwani (AIR 1983 Bom.268).
Para 16 reads as follows:
"16. Rejecting Mr. Dalapatrai'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;
(d) the right to apply would accrue when it becomes
necessary to apply which may not necessarily be
within 3 years form the date of he 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".
17. The conclusion 'b' is not correct while the
conclusion 'c' is the correct position of law.
18. In view of the factual scenario, the right to apply
actually arose on 9.8.1999 when the proceedings were
withdrawn by Smt. Nirmal Jeet Kaur. Since the petition
was filed within three years, the same was within time
and therefore the appeal is without merit, deserves
dismissal, which we direct but in the circumstances
without any order as to costs.
ajay sethi
(Expert) 20 December 2011
in view od decision of supreme court it is not necessaey to apply within priod of 3 years from date of death of testator . if there is delay beyond 3 years it is suspicious and delay in filing must be explained
prabhakar singh
(Expert) 21 December 2011
Then my post was not that a probate by executor has to be moved with in three years from the date of death of the testator.
My post stated that the executor ,if chooses to act then limitation to file probate shall
start from the date EXECUTOR COMES TO KNOW ABOUT THE DEATH OF THE TESTATOR.
AND in case he refuses to act,the beneficiaries under Will shall have limitation of three years for letter of administration from the date the executor refuses to act.
Raj Kumar Makkad
(Expert) 21 December 2011
It is true that the limitation seeking probate against the will is within 3 years of death of testator or date of knowledge of will whichever is later as per Article 137 of Limitation Act and there are number of citation in support of this settled law.
BUT
The query is still unanswered. None has paid care towards the querist.
In his case, will has already been probated and mutations have also been executed accordingly but one or two beneficiaries now want to resile from settled position.
It is not possible at this stage as each one is enjoying his own property hence there are no chances to disturb the position as prevalent on day.
