Supreme Court of India
KRISHNA KUMAR SHARMAversusRAJESH KUMAR SHARMA
- Citation
- 2009 INSC 420
- Decided
- 27 March 2009
- Disposal
- Case Partly allowed
- Bench
- ARIJIT PASAYAT
Holding
Article 137 of the Limitation Act, 1963 applies to applications under the Succession Act, 1925 for grant of probate or letters of administration.
Summary
The dispute arose between step‑brothers over the validity of a registered will and the right to obtain probate or letters of administration under the Indian Succession Act, 1925. The respondent claimed the will was valid, while the appellant sought probate. The central legal question was whether Article 137 of the Limitation Act, 1963 applies to such probate applications. The Supreme Court held that any application to a civil court under the Succession Act, including petitions for probate or letters of administration, falls within the ambit of Article 137, which provides a three‑year limitation from the accrual of the right to apply. The Court noted that the right to apply is a continuing right that accrues when it becomes necessary, not merely at the death of the testator. Since other issues remained, the matter was remitted to the lower court for fresh consideration. The appeal was partly allowed and the case was sent back for further proceedings.
Issues considered
- Whether Article 137 of the Limitation Act, 1963 applies to petitions for grant of probate or letters of administration under the Succession Act, 1925.
- Whether the right to apply for probate accrues at the date of death or when it becomes necessary, and the consequent period of limitation.
- Whether a probate application constitutes an "application" within the meaning of Article 137.
Legislation cited
- Indian Succession Act, 1925s. 264, s. 2(bb)
- Limitation Act, 1963s. 137
Subjects
Limitation ActArticle 137ProbateLetters of AdministrationSuccession ActInheritanceWillCivil ProcedureLimitation period
Judgment
[2009] 4 S.C.R. 1223
,. KRISHNA KUMAR SHARMA A
< V.
RAJESH KUMAR SHARMA
Civil Appeal No. 1967 of 2009
:..
MARCH 27, 2009 B
[DR.ARIJIT PASAYAT AND ASOK KUMAR GANGULY,
JJ.]
Limitation Act, 1963 - Article 13 7 - Applicability of, to
probate proceedings - Held: Article 137 is, clearly applicable c
to petition for grant of probate or Letters of Administration -
However, since other issues involved, matter remitted back
for consideration afresh - Succession Act, 1925.
The question which arose for consideration in the
appeal was whether Article 137 of the Limitation Act, 1963 D
)
would be applicable to the proceedings seeking probate.
Partly allowing the appeal, the Court
HELD: 1.1 Any application to civil court under the
Succession Act, 1925 is covered by Article 137 of the E
Limitation Act, 1963. The application is made in terms of
"' s. 264 of the 1925Act to the District Judge. Section 2(bb)
of th.,e Act defines the District Judge to be Judge of
Principal Civil Court. The crucial expression is "right to
apply". Article 137 is clearly applicable to the petition for F
grant of Letters of Administration. In such proceedings
the applicant merely seeks recognition from the Court to
perform a duty because of the nature of the proceedings.
It is a continuing right. Though the nature of the petition
" has been rightly described by High Court, it was not G
correct in observing that the application for grant of
probate or letters of Administration is not covered by
Article 137 of the Limitation Act. [Paras 5, 7 and 8] [1227-
A-8; G-H; 1229-A-B]
1223 H
1224 SUPREME COURT REPORTS [2009] 4 S. C.R.
A 1.2 Since other issues were involved, the matter is 1
remitted back to consider the matter afresh in view of
'
Kunvarjeet's case*. [Para 11]
The Kera/a State Electricity Board, Trivandrum v. TP
8 Kunhaliumma 1976 (4) SCC 634 - relied on.
* Kunvarjeet Singh Khandpur v. Kirandeep Kaur and Ors. 2008
(8) SCC 463; S.S. Lal v. Vishnu Mitter Govil 112 (2004) Delhi
Law Times 877 (DB); Kanwal Malhotra v. State 125 (2005) Delhi
Law Times 281; S.S. Rathore v. State of M.P. 1989(4) SCC
c 582; S. Krishnaswami and etc. etc. v. E. Ramiah AIR 1991
Madras 214; Vasudev Daulatram Sadarangani v Sajni Prem
Lalwani AIR 1983 Bom.268 - referred to.
Case Law Reference
D
'
112 (2004) DLT 877 Referred to. Para 3
125 (2005) DLT 281 Referred to. Para 3
1976 (4) sec 634 Relied on. Para 5
E 1989(4) sec 582 Referred to. Para 6
AIR 1991 Madras 214 Referred to. Para 7
AIR 1983 Bom.268 Referred to. Para 9
2008 (8) sec 463 Referred to. Para 10
F
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1967
of 2009
From the Judgement and Order dated 05.07.2005 of the
Hon'ble High Court of Delhi at New Delhi in F.A. No. 641 of \.
G 2002.
' K.K. Mohan, for the Appellant.
Aseen Mehrotra, Abhijat P. Medh, for the Respondent.
H The Judgement of the Court was deliveredby
KRISHNA KUMAR SHARMA V. 1225
RAJESH KUMAR SHARMA
DR. ARIJIT PASAYAT, J. A
1. Leave granted.
2. Challenge in this appeal is to the order passed by the
D~lhi High Court which by the impugned order allowed the
appeal filed by the respondent. B
3. Background facts in a nutshell are as follows:
Respondent, the propounder of the registered wil.I dated
13th July, 1989 executed by his mother, has locked horns with
his step brother, Krishan Kumar Sharma, the appellant herein C
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
1
that the will dated 13 h July, 1989 was made by the above said D
testatrix in sound disposing mind on 13th July, 1989 and it was
th .
got registered on 11 September, 1989. SmL Sneh Prabha
Sharma died on 9th July, 1990. Except the appellant, none of
the other siblings of the appellant contested the petition moved E
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 F
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 Times 281] to hold that Limitation Act has no application to
proceedings seeking for probate. , G
4. Learned counsel for the appellant submitted that the
interpretation placed by the High ~ourt is not correct. The primary
question that needs reconsideration is whether Article 137 of
the Limitation Act is applicable. It appears that certain other H.
1226 SUPREME COURT REPORTS [2009] 4 S.C R.
A aspects were considered by the High Court to which reference
shall be made subsequently.
5. In The Kera/a State Electricity Board, Trivandrum v.
T P Kunhalwmma [1976 (4) SCC 634] it was inter alia
8 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
c 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
D 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
E 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
F 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
G from the view taken by the two-judge bench of this Court
in Athani Municipal Council case 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 •
H District Judge as a court. The petition was one
KRISHNA KUMAR SHARMA V 1227
RAJESH KUMAR SHARMA [DR. ARIJIT PASAYAT, J]
contemplated by the Telegraph Act for judicial decision. A
The petition is an application falling within the scope of
Article 137 of the 1963 Limitation Act."
In terms of the aforesaid judgment any application to Civil
Court under the Act is covered by Article 137. The application 8
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.
6. Further in S.S. Rathore v. State ofM.P [1989(4) SCC
582] it was inter-alia stated as follows: C
"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 D
decisions as on the authority of the judgment of this Court
in the case of Pierce Leslie & Co. Ltd. v. Violet Ouchterlony
Wapshare 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 fo suits to which no other E
article in the schedule applies."
7. 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 F
Division.
Period of Limitation: Three Years
Time from which period begins to run:
When the right to apply accrues." G
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 H
1228 SUPREME COURT REPORTS [2009] 4 S.C.R.
A 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
B 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 •
c 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
D 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
E 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
-
F 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
G
-
~
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."
H
KRISHNA KUMAR SHARMA V. 1229
J
RAJESH KUMAR SHARMA [DR. ARIJIT PASAYAT, J.]
8. Though the nature of the petition -has been rightly A
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). B
9. Similarly, reference was made to a decision of the
Bombay High Court's case in Vasudev Dau/atram
Sadarangani v Sajni Prem Lalwani (AIR 1983 Bom.268).
Para 16 reads as follows: c
"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 D
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; E
(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;
F
(d) the right to apply would accrue when it becomes
necessary to apply which may not necessarily be within 3 G
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;
H
1230 SUPREME COURT REPORTS [2009] 4 S.C.R
A (f) such delay must be explained, but cannot be equated
with the absolute bar of limitation; anc!
(g) once execution and attestation are proved, suspicion
of delay no longer operates·
B 10. These aspects were highlighted in Kunvarjeet Singh
Khandpur v. Kirandeep Kaur & Ors. (2008 (8) SCC 463).
11. Since oth~r questions were involved we remit the matter
to consider the matter afresh in view of what has been stated in
c Kunvaryeet's case (supra).
\
12. The appeal is allowed to the aforesaid extent.
N.J. Appeal party allowed.
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