High Court
Case Details
CRP 444/2012 PRESENT HON’BLE MR JUSTICE A. C. UPADHYAY This revision petition has been filed praying for setting aside the orders dated 26th August, 2011 and 20th July, 2012 passed in Misc(P) no. 129/2011 by the lea rned District Judge, Dibrugarh rejecting the prayer of the petitioner for filing written-objections to the probate application.
Legal Reasoning
’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 th e 1908 Limitation Act shows that applications contemplated under Article 137 are not applications confined to the Code of Civil Procedure. In the 1908 Limitatio n Act there was no division between applications in specified cases and other ap plications as in the 1963 Limitation Act. The words (cid:28)any other application (cid:29) unde r Article 137 cannot be said on the principle of ejusdem generis to be applicati ons under the Civil Procedure Code other than those mentioned in Part I of the t hird 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 re ason that Sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescri bed 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 prefer ring 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 At hani 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 Proc edure. The petition in the present case was to the District Judge as a court. Th e 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 L imitation Act.’ In terms of the aforesaid judgment any application to civil court under the Act is covered by Article 137. Apparently, the decision rendered by the learned trial court is beyond t he scope of law. Learned counsel for both the parties agreed for remand of the m atter to the learned trial court for proper adjudication of the issues in accord ance with law. In view of above, the impugned order is set aside and the matter is remi tted back to the learned court below with direction to rehear the matter afresh after giving adequate opportunity of being heard to both the parties. Parties ar e directed to appear before trial court on 3.4.2013. The learned court below wou ld also allow the petitioners to file written objections, if any. With the above observation and direction the revision petition is dispos ed of.
Arguments
Heard Mr N Choudhury, learned counsel for the petitioner and Mr BK Bhatt acharjee, learned counsel for the respondent. Issue raised in the impugned order is, whether the probate proceeding wa s barred by limitation. On a consideration of the issue after hearing learned co unsel for the parties, learned District Judge observed as follows: (cid:28)The law is almost well settled that the Limitation Act does not deal wi th enforcement of a right under a Will. The Indian Succession Act is a self cont ained code in so far as the question of making of an application for probate or an appeal taken from a decision of the Probate Court is concerned. This is very clearly manifested in the provisions of sections 217, 264, 299 and 300 Part IX o f the Act. That apart, reading the scheme also of the schedule appended to the L imitation Act, it becomes clear that the enactment is not meant to apply to Prob ate proceeding. There is no period of limitation for application for the grant o f Probate (cid:29). Mr N Choudhury, learned counsel for the petitioner, referred to a decisi on of the Apex Court reported in Kunvarjeet Singh Khandpur v. Kirandeep Kaur and others, (2008) 8 SCC 463, wherein the Honourable Supreme Court observed as foll ows: (cid:28) The appellant’s stand all through was that the testator Mohinder Singh Khandpur had expired on 5-10-1995 and the petition under Section 278 of the Suc cession Act, 1925 (in short (cid:28)the Act (cid:29)) for grant of letters of administration wa s filed on 7-8-2002, and therefore, the same was barred by limitation. The learn ed Additional District Judge after referring to Section 232 of the Act held that the cause of action in favour of Respondents 1 to 3 had arisen only when Probat e Petition No. 22 of 1996 filed by Ms Nirmal Jeet Kaur, Respondent 5 was withdra wn 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. The order was challenged before the High Court. The appellant’s stand was that A rticle 137 of the Limitation Act, 1963 (in short (cid:28)the Limitation Act (cid:29)) had appli cation. It was submitted that Article 137 of the Limitation Act has clear applic ation and the application for grant of letters of administration was filed beyon d the speculated time. 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 vie w of the learned Additional District Judge was correct. The High Court noted that there was no dispute that Mrs Nirmal Jeet Kaur had fil ed a probate petition in the Court of the District Judge which was numbered as P robate Case No. 22 of 1996 for grant of probate in respect of will dated 9-9-199 1 after the death of Mohinder Singh Khandpur. The said petition was withdrawn on 9-8-1999. An application was filed by the present Respondents 1 to 3 for being transposed as applicants in the application but the said application was dismiss ed with right and liberty granted to the present Respondents 1 to 3 to initiate appropriate proceedings. 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 let ters of administration is not covered by Article 137 of the Limitation Act. Learned counsel also referred to another decision of Apex Court in Krish na Kumar Sharma v. Rajesh Kumar Sharma, (2009) 11 SCC 537, wherein the Hon’ble S upreme Court observed as follows: 6. (cid:28)11. In Kerala SEB v. T.P. Kunhaliumma3 it was inter alia observed as follows: (SCC pp. 638-39, paras 18 & 22)