Samrendra Raj Singh v. Smt. Alka Singh and
Case Details
1 Singh v. Smt. Alka Singh and 3 others.) First Appeal No.133 of 2024 (Samrendra Raj Neutral Citation No. - 2024:AHC:190749 Court No. - 36 Case :- FIRST APPEAL No. - 133 of 2024 Appellant :- Samrendra Raj Singh Respondent :- Smt Alka Singh And 3 Others Counsel for Appellant :- Abhishek Gupta,Chandra Bhan Gupta Counsel for Respondent :- Dharmendra Kumar Shukla,Uma Nath Pandey,Utkarsh Birla Hon'ble Kshitij Shailendra,J. 1. Heard Shri C.B. Gupta, learned counsel for the appellant,
Legal Reasoning
Shri Uma Nath Pandey for respondent No.1 and also as brief holder of Shri D.K. Shukla, learned counsel for respondent Nos.2 and 3 and Shri Utkarsh Birla, learned counsel for respondent No.4. 2. The instant appeal raises a challenge to the order dated 16.11.2023 whereby the learned District Judge, Gautam Buddha Nagar has converted the probate application filed by the respondent No.1 into a suit and fixed a date for framing of issues. 3. On 13.11.2024, after conducting preliminary hearing on this appeal, following order was passed:- "1. The issue involved in this case is whether when a contest is made against a probate application, District Judge is required to examine the issue of limitation in respect of filing the probate application or the said issue would remain open to be adjudicated upon after the application is converted into a suit as per Section 295 of the Indian Succession Act, 1925. Applicability of Article 137 of the Schedule contained under the Limitation Act is also to be examined in such proceedings. 2. Learned counsel for both sides shall study the matter from this angle and bring the relevant authorities on this point. 2 First Appeal No.133 of 2024 (Samrendra Raj Singh v. Smt. Alka Singh and 3 others.) 3. Put up as fresh after two weeks. " 4. On the aspect mentioned in the previous order, Shri C.B. Gupta, learned counsel for the appellant vehemently argues that before proceeding further with the probate application, the District Judge was duty bound to decide the question of bar of limitation. When asked, Shri Gupta, submits that neither under the Indian Succession Act, 1925 (hereinafter referred to as ‘the Act of 1925’) nor under the Limitation Act, 1963 (hereinafter referred to as ‘the Act of 1963’), any specific period of limitation for filing a probate application has been provided. However, he presses residuary Article 137 of the Schedule and submits that since the probate applicant was aware of the Will dated 26.12.2008 executed by Shri Deshraj Singh who died on 18.05.2019, cause of action arose immediately after the death of the testator but the applicant chose to file probate application on 03.07.2023 i.e. after a period of more than four years and, hence, application was barred by limitation. In support of his submissions, he places reliance upon the following authorities:- (i). Kunvarjeet Singh Khandpur v. Kirandeep Kaur & Ors., (2008) 8 SCC 463; (ii). Krishna Kumar Sharma v. Rajesh Kumar Sharma, (2009) 11 SCC 537. 5. Per contra, both the learned counsel for the respondents submit that the question of limitation, being a mixed question of fact and law, can be raised during the suit proceedings and since the appellant is an objector and the matter has become contentious, as per Sections 286 and 295 of the Act of 1925, all 3 First Appeal No.133 of 2024 (Samrendra Raj Singh v. Smt. Alka Singh and 3 others.) the questions proposed to be raised by such an objector are still open to be decided in suit proceedings. Shri Uma Nath Pandey also submits that contents based upon 'paragraph 18' of the probate application can be examined where the probate applicant had stated that when mutation done in the name of the objector in the records of NOIDA qua the property in dispute came to the knowledge of the probate applicant, necessity to apply for probate arose. 6. Having heard learned counsel for the parties, this Court may first refer to Article 137 of the Schedule contained under Limitation Act, 1963 which reads as under:- PART II-OTHER APPLICATION 137 Any other application for which no period of is provided limitation elsewhere in this division. Three years When the right to apply accrues. 7. A bare perusal of Article 137 would show that three years period of limitation commences on the date when the right to apply accrues. As to when right to apply for obtaining probate would arise, is the question which is not provided under the Act of 1925 and it is not one of the components mentioned under Section 276 of the Act of 1925. Therefore, whether the date of knowledge of Will or date of death or the date when cause of action would actually arise for obtaining the probate, is something to be decided by the Court in the suit proceedings. 8. As far as judgment of Supreme Court in Krishna Kumar Sharma (supra) is concerned, the Supreme Court, while dealing 4 First Appeal No.133 of 2024 (Samrendra Raj Singh v. Smt. Alka Singh and 3 others.) with the issue of limitation corresponding to Article 137 has observed that the period of limitation may not necessarily be within three years from the date of deceased's death and delay beyond three years would arouse suspicion and greater the delay, greater would be the suspicion and also such delay must be explained but cannot be equated with the absolute bar of limitation. The judgment, as such, does not help the appellant, rather it applies against him, inasmuch as, the Court in the suit proceedings has to decide with reference to 'paragraph 18' of the probate application or any other material as to when exactly the cause of action to apply for probate had arisen. The said question is still not closed. 9. As far as judgment in Kunvarjeet Singh Khandpur (supra) is concerned, in the said case also, the Apex Court has examined the question of limitation in the light of Article 137 and the commencement of period of limitation has been explained as was done in the case of Krishna Kumar Sharma (supra). 10.
Decision
In view of the above, merely because the application has been converted into a suit by the order impugned and, at this stage, question of limitation has not been gone into by the learned District Judge, this Court does not find any illegality in the order and hence, the appeal has no force. 11. The appeal is, accordingly, disposed off without interfering with the order impugned dated 16.11.2023 but with an observation that plea of limitation raised by the appellant shall remain open to be raised in the suit proceedings and it 5 First Appeal No.133 of 2024 (Samrendra Raj Singh v. Smt. Alka Singh and 3 others.) shall be decided after framing a separate issue. All other questions shall also remain open to be raised. Order Date :- 5.12.2024 Jyotsana (Kshitij Shailendra, J.)