KUNVARJEET SINGH KHANDPURversusKIRANDEEP KAUR & ORS.

                          [2008] 5 S.C.R. 1057


                 KUNVARJEET SINGH KHANDPUR                               A
                                   \I.
                     KIRANDEEP KAUR & ORS.
                   (Civil Appeal No. 2464 of 2008)

                            APRIL 3, 2008
                                                                         B
        [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

         Limitation Act, 1963 - Article 137 - Petition for grant of
    probate/letters of administration - Applicability of Article 137
    - Held: .ts applicable to such petition - On facts, petition for
    grant of letters of administration filed in 2002, when testator
                                                                         c
    died in 1995, not barred by limitation since right to apply
    actually arose in 1999 when probate proceedings were
    withdrawn - Hence, petition filed within the limitation period of
    three years - Indian Succession Act, 1925 - ss. 278 and 232.
                                                                         D
           Indian Succession Act, 1925 - s. 278 - Petition for grant
(
    of letters of administration - Nature of- Held: Is to seek Court's
    permission to perform a legal duty created by Will or for
    recognition as testamentary trustee - It is a continuous right
    which can be exercised any time after death of deceased, as          E
    long as the right to do so survives.
          The testator executed a Will on 09.09.1991. He died
    on 05.10.95. Thereafter, respondent no. 5 filed petition
    before the District Judge for grant of probate in respect
    of the Will, however, he withdrew the petition on 09.08.99. F
    Respondent no. 1 to 3 were given liberty to file appropriate
    proceedings. On 07.08.2002, respondent no. 1 to 3 filed
    petition for grant of letters of administration. Appellant
    contended that the petition was barred by limitation since
    it was filed after seven years from the death of the testator. G
    The District Judge held that the cause of action arose in
    favour of respondent no. 1 and 3 when the probate
    petition was withdrawn on 09.08.1998 thus, petition for
    grant of LOA of Will filed on 07.08.2002 was within the
                                  1057                                   H
    1058      SUPREME COURT REPORTS              [2008] 5 S.C.R.


A limitation period of three years. High Court upheld the
  order of District Judge holding that Article 137 of Limitation
  Act, 1963 did not apply to proceedings for grant of probate/
  Letters of administration. Hence the present appeal.
           Dismissing the appeal, the Court
B
        HELD: 1.1 The crucial expression in Article 137 of
  the Limitation Act, 1963 is 'right to apply'. Article 137 is
  clearly applicable to the petition for grant of Letters of
  Administration. The High Court rightly observed that in
c 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.
  Though the High Court rightly described the nature of
  petition, it was not correct in observing that the application
  for grant of probate or letters of Administration is not
0
  covered by Article 137 of the Act. [Paras 14 and 1         i;:
  [1063-A-B; 1064-A-B]
       1.2 An application for grant o:· ~.etters of
  Administration is for the Court's permission to perform a
E 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 ~he
  trust exists or any part of the trust, if created, remains to
F be executed. [Paras 16 and 17] [1064-E-F; 1065-B]
        1.3 In view of the factual scenario, the right to apply
  actually arose on 9.8.1999 when the proceedings were
  withdrawn by respondent no. 5. Since ~he ?etition was
  filed within three years, the same was wlti1in time and
G therefore the appeal is without merit. [Para 18] [1065-C]
        The Kera/a State Electricity Board, Trivandrum v. TP
    Kunhaliumma 1976 (4) SCC 634; S.S. Rathore v State of M.P
    1989 (4) sec 582 - relied on.
H          Vasudev Daulatram Sadarangani v Sajni Prem Lalwani
         KUNVARJ.EET SINGH KHANDPUR v. KIRANDEEP                    1059
            KAUR & ORS. [DR. ARIJIT PASAYAT, J.]
~
      AIR 1983 Born. 268; S. Krishnaswami and etc: etc. v. E.              A
      Ramiah.AIR 1991 Madras 214 - approved.

          CIVIL APPELLATE JURISDICTION : _Civil Appeal No.
      2464 of 2008

           From the final Judgment and Order dated 24.11.2005 of           B
      the High Court of Delhi at New Delhi in Civil Revision No. 156
      of 2005

            Sanjeev Sachdeva, Chetan Chopra and Saurabh Sharma
      for the Appellant.
                                                                           c
           V. Shekhar, S. Ganesh, Abhigya and N. Annapoorani for
      the Respondents.

           The Judgment of the Court was delivered by

           DR. ARIJIT PASAYAT, J. 1. Leave granted.
                                                                           D
'>(         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 E
      Judge had held that the petition for grant of Letters of
      Administration of Wil! dated 9.9.1991 purportedly executed, by
      late Sh. Mo hinder Singh Khandpur was not barred by limitation
      and was maintainable.

            3. The factual position needs to be noted in a nutshell as F
      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 anp the G
      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 Ju~e after referring to Section 232
      of the Act held that the ca.use of action in favour of the respondent
                                                                            H

'
    1060      SUPREME COURT REPORTS                    [2008] 5 S.C.R.
                                                                          ..._     -
A   Nos. 1 to 3 had arisen only when the Probate Petition No. 22 of
    1996 filed by Ms. Nirmal Jee! 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.
8         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
c   the stipulated time.
       6. The High Court observed that Article 137 of the
  Limitation Act does not apply to proceedings for grant of
  Probate/Letters of Administration and therefore the view of the
  learned Additional District Judge was correct. Reliance was
D 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
E 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
F 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
G 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
H submitted that the right to apply for grant of Letters of
             KUNVARJEET SINGH KHANDPUR v. KIRANDEEP                       1061
                KAUR & ORS. [DR. ARIJIT PASAYAT, J.]
~-...i
          Administrations is a continuing right and the starting point is the     A
          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.           B
~
     )    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 Kera/a State Electricity Board, Trivandrum v.          c
          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 D
               Act shows that applications contemplated under Article
    '
    '.f        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 E
               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. F
               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
                                                                              G
               preferring the appeal or making the application during
               such period.
               22. The conclusion we reach is that Article 13 7 of t>ie
'1
               1963 Limitation Act will apply to any petition or applicat1or1
               filed under any Act to a civil court. With respect we d:ff8r       rl
    1062       SUPREME COURT REPpRTS                   [2008] 5 S.C.R.

                                                                           )-- '
A          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
B          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
c 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
D
    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
E          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
           Wapshare'J it must be held that Article 113 of the Act of
           1963, corresponding to Article 120 of the old Act, is a
F          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:
                                                                             r·
                                                           '
           "137. Description of application: Any other application for
           which no period of limitation is provided elsewhere in the
G
           Division.
           Period of Limitation: Three Years
                                                                              f"
           Time from which period begins to run:

H          When the right to apply accrues."


                                                                                   I·
   KUNVARJEET SINGH KHANDPUR v. KIRANDEEP                    1063
      KAUR & ORS. [DR. ARIJIT PASAYAT, J.]

       The crucial expression in the Article 137 is "right to apply". A
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 B
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 C
     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 D
     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 E
     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 F
     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 G
     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
                                                                   H
      1064       SUPREME COURT REPORTS                   [2008] 5 S.C.R.


A            '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
B     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
c     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:-
D            (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
E
             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
F            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
G            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;
i {
   KUNVARJEET SINGH KHANDPUR v. KIRANDEEP                      1065
      KAUR & ORS. [DR ARIJIT PASAYAT, J.]

       (f) such delay must be explained, but cannot be equated          A
       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      s
'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             C
without merit, deserves dismissal, which we direct but in the
circumstances without any order as to costs.

N.J.                                           Appeal dismissed.