Karnataka High Court
Sri Srinivas R vs Nil on 12 February, 2020
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
MISCELLANEOUS FIRST APPEAL NO. 8311 OF 2019 (ISA)
BETWEEN:
1. SRI SRINIVAS. R
SON OF LATE H.RAMESH BHATT,
AGED ABOUT 40 YEARS
RESIDING AT 404, 8TH MAIN ROAD,
ITI EMPLOYEES LAYOUT, MALATHALLI,
BENGALURU - 560 056.
2. SRI SRINATH. R
SON OF LATE H.RAMESH BHATT,
AGED ABOUT 30 YEARS
RESIDING AT PLATINUM PICASSA, 401,
3RD MAIN, VHBS LAYOUT, NAGAWWARA,
BENGALURU - 560 045.
... APPELLANTS
(BY SRI. SAMMITH. S., ADVOCATE)
AND:
NIL ... RESPONDENT
THIS MISCELLENEOUS FIRST APPEAL IS FILED UNDER
SECTION 384 OF INDIAN SUCCESSION ACT, 1925 AGAINST THE
ORDER DATED 15.07.2019 PASSED IN P AND S C NO. 124/2019 ON
THE FILE OF THE XXXIX ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU, DISMISSING THE PETITION FILED UNDER
SECTION 372 OF THE INDIAN SUCCESSION ACT.
THIS MISCELLENEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The appellants' petition under Section 372 of the Indian Succession Act, 1925 in P&SC No.124/2019 on the file of the XXXIX Additional City Civil Judge, Bangalore City (for short, the 'Probate Court') is rejected by the impugned order dated 15.7.2019, and as such, the appellants have filed this appeal.
2. The learned Counsel for the appellants submits that the appellants are the children of Smt.Vijayalakshmi Bhat who died on 17.1.2002 and the appellants' father late Sri H.Ramesh Bhat died as on 6.10.2015. The appellants have succeeded to the estate of Smt.Vijayalakshmi Bhat who inter alia owned certain assets including the shares of M/s Shriram Transport Finance Company Limited, formerly M/s Shriram Investments Limited. The appellants, who have succeeded to the estate of Smt.Vijayalakshmi Bhat, would be entitled for issuance of the Succession Certificate in respect of these shares. -3- Therefore, they have filed petition under Section 372 of the Indian Succession Act, 1925. The Probate Court has dismissed the petition solely on the ground that the petitioners have filed the petition more than 17 years after the demise of Smt.Vijayalakshmi Bhat. The cause of action for filing a petition for Succession Certificate accrues on the death of Smt.Viajyalakshmi Bhat and the petition filed beyond 3 years from the date of demise is barred in law because of the provisions of Article 137 of the Limitation Act, 1963.
3. The learned Counsel for the appellants submits that the Probate Court could not have dismissed the petition on the ground that the petition is barred by limitation placing reliance upon the decision of the Bombay High Court in Vasudev Daulatram Sadarangani vs. Sajni Prem Lalwani reported in AIR 1983 Bombay 268 as well as the decision of the Division Bench of this court in -4- B.Manjunatha Prabhu and Others vs. C.G.Srinivas and Others reported in AIR 2005 Kar.136.
4. The questions that arise for consideration is:
(i) Whether the appellants' application under Section 372 of the Indian Succession Act, 1925 for issuance of Succession Certificate could have been dismissed by the Probate Court on the ground that such petition is barred by limitation.
(ii) If the Probate Court could not have dismissed the petition on the grounds of limitation, what orders are to be made in this appeal.
5. The Bombay High Court in Vasudev Daulatram Sadarangani supra while examining the question whether the application for issuance of Letters of Administration could be dismissed on the ground of delay because of the provisions of Article 137 of the Limitation Act, 1963 has held as follows:
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"The basic question that arises is whether the 3- year period must be computed from the date of the deceased's death as urged by Mr. Dalapatrai. Under the Limitation Act, no period is advisedly prescribed within which a petition for probate or letters of administration or succession certificate must be made after the deceased's death. There is no warrant for the assumption that the right to apply envisaged in Art. 137 necessarily accrues on the date of the death of the deceased. Such an application is to seek the Court's imprimatur to perform a duty created by a Will or for recognition as a testamentary trustee. The right to apply is a continuous right which is capable of being exercised as long as the object of the trust exists or any part of the trust, if created, remains to be executed. Gnanamuthu Upadeshi v. Vana Koilpillai Nadan, ILR (1894) Mad 379 (381). Being a continuous right, it can be exercised at any time after the death of the deceased, as long as the right to do so exists. The right to apply may therefore accrue not necessarily within 3 years from the date of the deceased's death but when it becomes necessary to apply, which may be any time after the death of the deceased, be it after several years. Of course it need hardly be emphasised that delay in making the application must rightly give cause for suspicion and greater the delay the stronger would be the suspicion. The petitioner must explain the delay, -6- as for instance in Kalidas Chuckorbutty v. Ishan Chunder Chuckrebutty MANU/PR/0104/1904: 9 C WN 49, where the delay was explained by the fact that there was no very urgent necessity for taking out probate, the estate itself being of trifling value. For that matter, provisions for explaining delay in making the application beyond 3 years of the deceased's death is to be found in R. 382 of the High Court Rules. The 3-
year period is presumably on the assumption that the necessity to make the application would ordinarily arise within that time. If the necessity arises thereafter, delay must, as stated earlier be explained to the satisfaction of the Court. Delay cannot be equated with the absolute bar of limitation."
The Division Bench of this Court in B.Manjunatha Prabhu and others vs. C.G. Srinivas supra, while examining the question whether a petition filed seeking probate would be barred by limitation under Article 137 of the Limitation Act, 1963 has also held as follows:
"We have now, as per our preceeding discussion, settled the question and we hold that Article 137 of the Limitation Act would not apply to the proceedings filed for grant of probate or Letters of Administration with or without the Will annexed. Before concluding, we must point out that though the proceedings filed for grant of probate or Letters of Administration may not come within -7- the mischief of Article 137 of the Limitation Act, 1963, yet the delay aspect is relevant to test the genuineness of the Will propounded. Delay in taking steps gives rise to suspicion and the longer the delay the stronger the suspicion. This is an aspect for consideration of the Court while dealing with the request. We can only leave this aspect at that. Now we have answered the references, the matters will have to go before the learned Single Judge, who could deal with them on merits."
6. It is obvious from these enunciations that the petition could not have been dismissed on the ground of being barred by limitation. However, the reason for the delay and the consequences thereof will have to be examined in the light of the aforesaid enunciations and the material on record before issuance of Succession Certificate. As the Probate Court has not considered the evidence and decided the question as to whether the appellants would be entitled for Succession Certificate on merits, this Court is of the considered view that it would be appropriate to set aside the impugned order and remit the matter for fresh consideration on merits calling upon the Probate Court to decide the matter within an outer limit of six months. Therefore, the following:
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ORDER The appeal is allowed in part and the impugned order dated 15.07.2019 in P&SC No.124/2019 passed by the XXXIX Additional City Civil and Sessions Judge, Bengaluru, dismissing the petition filed under section 372 of the Indian Succession Act, 1925 is set aside. The petition in P&SC No. 124/2019 is restored to the Court of the XXXIX Additional City Civil and Sessions Judge, Bengaluru, for reconsideration in the light of the observations made herein. The appellants shall appear before the Court on the first date of hearing without further notice on 16.3.2020. The Probate Court shall dispose of the petition as expeditiously as possible but within an outer limit of six months from 16.3.2020.
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JUDGE nv CT:sr