Delhi District Court
Smt. Om Wati vs State on 10 August, 2020
IN THE COURT OF SH. AJAY PANDEY
ADDITIONAL DISTRICT JUDGE -02, NORTH-WEST
ROHINI COURT: DELHI.
PC NO. 50400/16
Smt. Om Wati
W/o Sh. Ram Chander
D/o late Todar Mal
R/o VOP Kundli,
Distt. Sonepat (HR) Petitioner
Versus
1. State
2. Sh. Longa Ram (now deceased)
S/o late Ranjit Singh
Through LRs
a. Sh. Om Parkash
b. Sh. Jagdish
c. Sh. Satbir Singh
d. Sh. Rattan Singh
e. Sh. Bhupender Singh
f. Sh. Shyam Lal
Above all (a to f) sons of late Longa Ram
R/o VPO Auchandi, Delhi-110039
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g. Smt. Prem
W/o Rambir Sharma
R/o Behind Main Stand, Indira Colony,
VPO Bahal Garh, Distt. Sonepat
Haryana.
h. Smt. Sheela Wati
W/o Sh. Raj Kapoor
R/o village Rampur, PO Sanpera
Distt. Sonepat, Haryana.
i. Smt. Rajo Devi
W/o Ravinder Kumar
R/o Bhagat Colony, B-Block,
Kalupur, The. & Distt. Sonepat
Haryana.
j. Smt. Raj Bala
W/o Sh. Jagdish Singh
R/o Mohala Bazari, VPO Beri,
Distt. Rohtak, Haryana.
3. Sh. Kanwar Lal
4. Sh. Puran Mal
5. Sh. Balraj
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Respondents 3 to 5 are
Sons of late Sh. Ranjit Singh
R/o VPO Auchandi, Delhi-110039. Respondents
Date of Institution : 23.08.2012
Date of Arguments : 19.02.2020
Date of Judgment : 10.08.2020
JUDGMENT:-
1. This order shall decide the preliminary issued framed by my learned predecessor on 04.09.2019 as follows:-
Whether the petition is within limitation? (OP on petitioner).
2. Arguments on preliminary issue were heard on 19.02.2020 and the matter was kept for orders on 18.03.2020. On 18.03.2020 no order was passed in view of the advisory received from Hon'ble High Court of Delhi vide endorsement no. 28-50/RG/DHC dated 13.03.2020 and matter was put up for purpose already fixed on 20.04.2020. Since 20.04.2020 matter was adjourned en-block in view of the directions passed by Hon'ble High Court of Delhi. Thereafter the order is being passed in view of the further directions of Hon'ble High Court that the judgment/order is required to be delivered in the cases in which arguments have been already heard.
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3. In addition to addressing his oral arguments learned counsel for petitioner also filed written submissions on behalf of petitioner.
FACTS
4. Petitioner Smt. Omwati filed this petition u/s 276 of the Indian Succession Act 1925 for probate of a Will purportedly executed by her father Sh. Todarmal on 25.08.1975. The facts as emerge from the petition are as follows :-
a) That Sh. Ramkala paternal grandfather of petitioner was having two sons namely Todarmal and Ranjeet Singh.
b) After the death of Sh. Ramkala Sh. Todarmal and
Sh. Ranjeet Singh inherited the joint and
unpartitioned agriculture land to the extent of half share each out of khata no. 239 under different khasras total measuring 42 bighas and 08 biswas situated in the revenue estate of village Auchandi, Delhi-39.
c) After the death of Sh. Ranjeet Singh his share in the agriculture land was inherited by the respondents being his legal heirs on the basis of succession u/s 50 of DLR Act 1954.
d) Father of petitioner during his life time executed a deed of Will dated 25.08.1975 in favour of petitioner devolving his share in the above said agriculture land to the petitioner.
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e) Father of petitioner Sh. Todarmal expired on 28.12.1977 and was survived by his widow Smt. Chandro and his daughter the petitioner herein. Petitioner is the only issue out of the wedlock of her parents and there was no male issue.
f) After the death of her father, petitioner filed an application for mutation on the basis of the Will dated 25.08.1975 before the Tehsildar concerned. On the other hand respondent Longa Ram filed an application dated 04.05.1978 before the Tehsildar concerned requesting for grant of mutation in terms of section 50 DLR Act.
g) Both these applications for sanction for mutation of the same property were referred to the Revenue Assistant concerned as he is the only competent authority in terms of section 23 of DLR Act to adjudicate the controversy.
h) During the pendency of trial of the cases a forged and fabricated deed of Will dated 17.07.1977 in favour of all respondents was forwarded by the respondent Longa Ram.
i) Litigation before the revenue authorities continued and vide order dated 11.04.2011 the learned Collector North-West District, Kanjhawala Delhi decided four appeals by one consolidated order making the following observation:-
Om Wati Vs State and Ors PC no. 50400/16 Page no. 5 of 30 (4) Both the issues are interlinked and I agree that the wills are surrounded by suspicious circumstances and on perusal of the record, written submissions and arguments addressed by the counsels for the parties, I hereby order to dismiss all the four appeals filed by the appellants. The parties may approach competent court for resolution of the matter of legitimacy of Wills. Files be consigned to record room.
j) The petitioner has thus filed the present petition for probate of the Will dated 25.08.1975 with the submissions that the Will was duly executed and registered in her favour by her father and that the Will dated 17.07.1977 relied upon by the respondents is a false and fabricated document. Petitioner further stated that cause of action for filing the present petition arose on 11.04.2011 when Sh. Amit Singhla, IAS, learned Collector, North-West District, Kanjhawala Delhi passed one consolidated order deciding four different appeals pending adjudication before his court in between different parties, but in respect of the same suit property vide which he made an observation that the parties may approach competent court for resolution of the matter of legitimacy of the Will.
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5. Though respondents no. 2 to 5 have filed their written statement, however the contents of the same are not discussed herein as the preliminary issue of limitation is required to be decided only on the basis of pleadings and documents of petitioner and the contentions raised by the respondents in their written statement are not required to be considered.
6. Learned counsel for the petitioner has submitted that the petition cannot be decided on the basis of preliminary issue in view of the judgment of Hon'ble Supreme Court in Ramesh B. Desai and Ors. Vs Bipin Vadilal Mehta & Ors, in which the Apex Court in para no. 16 held as under:-
16. A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. The question whether the words "barred by law" occurring in Order VII Rule 11(d) CPC would also include the ground that it is barred by law of limitation has been recently considered by a two Judge Bench of this Court to which one of us was a member (Ashok Bhan J.) in Civil Appeal No. 4539 of 2003 (Balasaria Construction Pvt. Ltd. vs. Hanuman Seva Trust and others) decided on 8.11.2005 and it was held : -
Om Wati Vs State and Ors PC no. 50400/16 Page no. 7 of 30 "After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the paint it cannot be held that the suit is barred by time." This principle would be equally applicable to a Company Petition. Therefore, unless it becomes apparent from the reading of the Company Petition that the same is barred by limitation the petition cannot be rejected under Order VII Rule 11(d) CPC.
7. In addition thereto learned counsel for petitioner argued that petitioner could approach this court for probate of registered Will dated 25.08.1975 only when the litigation before the revenue court as well as the appellate court came to an end i.e. only after 11.04.2011 and the petitioner has filed the present petition before this court on 23.08.2012. Learned counsel for the petitioner also Om Wati Vs State and Ors PC no. 50400/16 Page no. 8 of 30 argued that for the purpose of limitation in a probate case Article 137 of the Limitation Act is relevant and according to the said article the probate petition can be filed within a period of three years when the right to apply accrues. He submitted that right to apply for the probate petition, accrued in favour of the petitioner only in view of the decision of the revenue court which was finalized on 11.04.2011 and therefore the present petition is within limitation period.
8. Learned counsel for petitioner further submitted that the right to apply for probate of the Will could not have accrued on the death of the deceased. He relied upon the judgment of Hon'ble Supreme Court in Kunvarjeet Singh Khandpur Vs Kiran Deep Kaur and Ors., AIR 2008 SC 2058 and impressed upon para 16 in which the Apex Court held as under:-
16. Similarly reference was made to a decision of the Bombay High Court's case in Vasudev Daulatram 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:--
(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;
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(b) the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the 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 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 necessary to apply which may not necessarily be within 3 years form the date of 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;
(f) such delay must be explained, but cannot be equated with the absolute bar of limitation; and
(g) once execution and attestation are proved, suspicion of delay no longer operates".
9. Learned counsel for petitioner further relied upon the judgment of Hon'ble Supreme Court in Krishan Kumar Sharma VS Rajesh Kumar Sharma AIR 2009 SC 3247 to submit that in Om Wati Vs State and Ors PC no. 50400/16 Page no. 10 of 30 the proceedings of probate petition, petitioner merely seeks recognization from the court to perform a duty because of the nature of proceedings and it is a continuing right.
10. Counsel for petitioner also submitted that even as per section 14 & 15 of the Limitation Act 1963, petitioner is entitled to exclude the time spent in the litigation before the revenue assistant/SDM and thereafter before the learned Collector w.e.f. 1977 to 2011.
11. In his written submissions learned counsel for petitioner has also referred the Punjab Land Records Manual and Haryana Land Records Manual in the category RELEVANT LAWS REGARDING MUTATION. The relevant portion of the written arguments is quoted herein below:-
THE PUNJAB LAND RECORDS MANUAL,1935 "7.15. The scope of mutation. The status of a land owner or tenant cannot be altered except- (a) by agreement of all the parties interested, or
(b) in consequence of a decree or order which is binding upon them, or
(c) in accordance with facts proved or admitted to have occurred.
Om Wati Vs State and Ors PC no. 50400/16 Page no. 11 of 30 (Section 37 of the Land Revenue Act, 1887). In cases of inheritance a summary inquiry into title is necessary on the lines indicated in 5 P.R. of 1912. Where it is claimed that property devolves by reason of a will this should be treated as a case of succession by inheritance and the inquiry will include an inquiry into the validity of the will. (1934. L.L.T.1)."
In view of the above stated rule it is clear that the revenue authorities can go to the veracity/validity of the will and effect the mutation on the basis of the WILL.
THE HARYANA LAND RECORDS MANUAL 2013 CHAPTER-7-THE RECORD OF RIGHTS "49. Virasat Bajaria Vasiyat Registered or Registered will- Any Hindu may dispose of by will or other testamentary disposition any property which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, or any other law for the time being in force and applicable to Hindus. If will is registered mutation will be entered and sanctioned accordingly after hearing natural heirs.
50. Virasat Bajaria Vasiyat Jabani or Unregistered will- When a Hindu died with testamentary disposition but will is unregistered, on presentation the unregistered will, mutation will be entered according to Vasiyat Jabani. It depends upon the Officer who enquire about the Vasiyat to decide whether the will is valid or Om Wati Vs State and Ors PC no. 50400/16 Page no. 12 of 30 not and sanction accordingly after hearing natural heirs. {See also para no. 7.15}
51. Virasat Pattadar or Lessee- If Pattedaar dies, his succession devolves according to the provisions of Hindu Succession Act."
12. Counsel for petitioner also filed the judgment delivered by Hon'ble High Court of Delhi on 15.03.2019 in Writ Petition (C) 541/2017 titled as Sh. Satbir Singh and Anr. Vs The Financial Commissioner and Ors.
13. Counsel for petitioner thus argued that the preliminary issue is liable to be decided in favour of petitioner and both the parties be allowed to lead evidence on the basis of their pleadings.
14. Learned counsel for the respondents no. 2 to 5 on the other hand submitted that the petition is barred by limitation on the face of it and is liable to be dismissed as such.
15. The court has gone through the petition and supporting documents and has considered the oral arguments, written submissions and citations relied upon by parties and proceed to decide the preliminary issue.
16. The court shall first deal with the submissions of learned counsel for petitioner that petition cannot be decided on the basis of the issue of limitation as the plea of limitation is a mixed Om Wati Vs State and Ors PC no. 50400/16 Page no. 13 of 30 question of law and fact. Reliance in this respect was placed by learned counsel for petitioner upon the judgment of Hon'ble Supreme Court in Ramesh B. Desai and Ors (supra).
17. The court has carefully gone through the judgment. The court is of humble opinion that in the judgment the Apex court had not created any absolute bar in deciding the case on the plea of limitation. The Apex Court had rather held in para 14 of judgment that the principle is well settled that in order to examine whether the plaint is barred by any law, the averments made in the plaint alone have to be seen and they have to be assumed to be correct. It was further held that it is not permissible to look into the pleas raised in the written statement or to any piece of evidence. It was further held that applying the said principle the plea raised by the contesting respondents in that case was supposed to be examined by looking into the averments made in the said petition alone and any affidavit filed in reply to the petition by the respondents cannot at all be looked into.
18. In this regard this court has already held that for the purpose of deciding the preliminary issue only the averments in the plaint would be considered. For this reason the court has not even narrated the facts stated in the reply of the respondents.
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19. From the decision of Apex Court in Ramesh B. Desai and Ors. (supra) it is clear that every case has to depend upon its own facts and circumstances. Facts of the said case are not applicable to the facts and circumstances of the present case. In the said case the learned Company Judge as well as Hon'ble Division Bench of Hon'ble High Court of Gujarat had considered the averments made by the respondents in his reply to the company petition. The Apex court had held that as per the averments in the company petition, though the fraud was played by the respondents in the year 1982 but the petitioners had come to know about it in May 1987 and therefore the company petition filed by them was held to be within limitation period. Even in that case the court had considered the question of limitation on the basis of pleadings of the petitioner. Hence, as a general rule it cannot be said that the question of limitation should not be considered just because in some cases it may be a mixed question of law and fact. In the case in hand the court is not taking any disputed fact and is rather constraining itself to the facts stated by the petitioner only. Hence, the decision on preliminary issue in the present case cannot be said to be a mixed question of fact and law. The law is being applied only to the facts pleaded by the petitioner. The judgment relied upon by the petitioner thus supports the view of my learned predecessor when he framed a preliminary issued and held that the same can be decided without evidence.
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20. Order 14 Rule 2 (2) of the CPC provides as follows:-
2. Court to pronounce judgment on all issues.--(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if the issue relates to--
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.]
21. Hence if any issue is related to the jurisdiction of court or is related to a bar to the suit created by any law, decision may first be given only on that issue.
22. Now the court may see whether a bar to the suit is created by any law.
23. Section 3 of the Limitation Act provides as follows:-
3. Bar of limitation.--(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, Om Wati Vs State and Ors PC no. 50400/16 Page no. 16 of 30 appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.
(2) For the purposes of this Act,--
(a) a suit is instituted,--
(i) in an ordinary case, when the plaint is presented to the proper officer;
(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and
(iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;
(b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted--
(i) in the case of a set off, on the same date as the suit in which the set off is pleaded;
(ii) in the case of a counter claim, on the date on which the counter claim is made in court;
(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court.
24. In Mahindra Land and Building Corporation Ltd. Vs Bhootnath Banerjee, AIR 1964 SC 1336, Apex Court held that section 3 is preemptory and it is the duty of the court not to proceed with the suit, appeal or application if it is made beyond the prescribed period of limitation irrespective of the fact whether the plea of limitation has been set up in defence or not. It was further held that the court has no choice in this respect. In catena of judgments it has been held that section 3 of the Limitation Act is mandatory and has to be obeyed in full and if any of the Om Wati Vs State and Ors PC no. 50400/16 Page no. 17 of 30 provisions contained in Sections 4 to 24 of the Act are inapplicable the mandatory provision of section 3 is attracted with the result that the court is bound to dismiss a suit or petition which on the face of it appears to be barred by time. The court has no power to relieve a petitioner from the bar of limitation on the ground of hardship, mistake or injustice and section 3 leaves no room for equitable consideration.
25. In view of section 3 of limitation act as well as catena of judgments by the superior courts it is clear that the law of limitation creates a bar to the any suit, petition or application, filed beyond prescribed period of limitation. Hence, according to Order 14 Rule 2 (2) Clause (b) CPC a preliminary issue may be framed in respect of limitation and the court may decide the issue first, if in the opinion of court the case or any part thereof may be disposed of on such issue only.
26. My learned predecessor at the time of framing of issue was already of this view. Hence, the preliminary issue is required to be decided at this stage. The arguments of learned counsel for petitioner are therefore misplaced.
27. Though there was no plea in the petition for excluding the time spent in the litigation before learned Revenue Authorities but in the written submission filed by petitioner, learned counsel Om Wati Vs State and Ors PC no. 50400/16 Page no. 18 of 30 for petitioner in para 9 has stated that petitioner is entitled to exclude the time spent in litigation before learned RA/SDM and thereafter before learned Collector i.e. from 1977 to 2011 as per section 14 and 15 Limitation Act, 1963. The court shall now deal with this plea taken in arguments only.
28. Section 14 of Limitation Act provides as follows :-
14. Exclusion of time of proceeding bona fide in court without jurisdiction.--(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
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(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.
Explanation.--For the purposes of this section,--
(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.
29. It was the duty of the petitioner to convince the court that the suit is within time and about the applicability of section 14 or 15 Limitation Act to exclude the time spent in litigation before the revenue authorities from 1977 to 2011. But the petition do not contain any such pleadings. However, the court shall examine the applicability of section 14 and 15 of Limitation Act to the facts and circumstances of the present case.
30. Sub section 1 of section 14 of Limitation Act is applicable to the suit or petition and according to said section in computing the Om Wati Vs State and Ors PC no. 50400/16 Page no. 20 of 30 period of limitation for the suit or petition, the time during which the petitioner was prosecuting with due diligence, other civil proceedings against the defendant/respondent shall be excluded where the proceeding relate to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature is unable to entertain it. Under sub section 2 of section 14 of Limitation Act, a similar benefit has been provided to the litigant in respect of any application filed by him and according to this sub section the time spent by the applicant against the same party for the same relief may be excluded where the applicant was prosecuting with due diligence the proceedings in another court which, from defect of jurisdiction or other cause of like nature is unable to entertain it.
31. A bare reading of section 14 makes it clear that in order to claim exclusion of time spent before the revenue authorities petitioner must satisfy that the proceedings before the revenue authorities related to the same matter in issue and that the revenue court from the defect of jurisdiction or other cause of a like nature was unable to entertain the petitioner's claim.
32. In his written submissions petitioner has quoted relevant laws regarding mutation which are reproduced herein below:-
The Punjab Land Records Manual, 1935:-
Om Wati Vs State and Ors PC no. 50400/16 Page no. 21 of 30 "7.15. The scope of mutation. The status of a land owner or tenant cannot be altered except- (a) by agreement of all the parties interested, or (b) in consequence of a decree or order which is binding upon them, or (c) in accordance with facts proved or admitted to have occurred. (Section 37 of the Land Revenue Act, 1887). In cases of inheritance a summary inquiry into title is necessary on the lines indicated in 5 P.R. of 1912. Where it is claimed that property devolves by reason of a will this should be treated as a case of succession by inheritance and the inquiry will include an inquiry into the validity of the will. (1934. L.L.T.1)."
The Haryana Land Records Manual 2013:-
"49. Virasat Bajaria Vasiyat Registered or Registered will- Any Hindu may dispose of by will or other testamentary disposition any property which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, or any other law for the time being in force and applicable to Hindus. If will is registered mutation will be entered and sanctioned accordingly after hearing natural heirs.
50. Virasat Bajaria Vasiyat Jabani or Unregistered will- When a Hindu died with testamentary disposition but will is unregistered, on presentation the unregistered will, mutation will be entered according to Vasiyat Jabani. It depends upon the Officer who enquire about the Vasiyat to decide whether the will is valid or Om Wati Vs State and Ors PC no. 50400/16 Page no. 22 of 30 not and sanction accordingly after hearing natural heirs. {See also para no. 7.15}
51. Virasat Pattadar or Lessee- If Pattedaar dies, his succession devolves according to the provisions of Hindu Succession Act."
33. Nowhere in the entire petition, it is mentioned that the revenue authorities, due to lack of jurisdiction were not entitled to entertain the claim of the petitioner. Rather it is categorically stated in the written submissions that the revenue authorities can go to the veracity/validity of the Will and effect the mutation on the basis of Will. Petitioner has even relied upon the judgment of Hon'ble High Court in Satbir Singh Vs The Financial Commissioner (supra) and has quoted the following excerpts :-
11. Deceased Dalel Singh was Hindu by religion and was a resident of village Dhansa, Tehsil Najafgarh, District Najafgarh, Delhi and the disputed property is also situated in village Dhansa, Tehsil Najafgarh, District Najafgarh, Delhi. The creation of suspicion in the execution of registered Will dated 30.10.1984 by Collector (SW) and discarding the same as being not probated ipso facto is bad in law. Probate in instant case is not required, reliance is placed on Clarance Pais v. Union of India AIR 2001 SC 1151 relevant extract is reproduced as under:
"6. ...A combined reading of Sections 213 and 57of the Act would show that where the parties to the will are Hindus or the properties in dispute are not in territories falling under Section 57(a) and (b), Om Wati Vs State and Ors PC no. 50400/16 Page no. 23 of 30 sub-section (2) of Section 213 of the Act applies and sub-section (1) has no application. As a consequence, a probate will not be required to be obtained by a Hindu in respect of a will made outside those territories or regarding the immovable properties situate outside those territories..."
12. It is expected from revenue officer, while deciding mutation of a case, he should look into the facts available before him only as the mutation proceedings are summary in nature and therefore, he need not to go into the intricate questions of law and fact. A party, if not satisfied with the order of the revenue officer may approach to competent Civil Court for redressal of his grievance and determination of his right, title and interest. Moreover, in the event of presentation of a registered deed, a formal effect should be given to the registered deed as a registered deed is prima facie proof of its execution.
34. Petitioner thus concluded that in view of the aforesaid judgment the officer dealing with mutation is competent enough to mutate the land on the basis of registered Will.
35. First of all, petitioner has not come before this court for effecting mutation on the basis of Will in her favour. Therefore, it cannot be said that the proceedings before this court and proceedings before the revenue authorities related to the same matter in issue. Secondly, as per the own averments and reliance Om Wati Vs State and Ors PC no. 50400/16 Page no. 24 of 30 of petitioner the revenue authorities did not lack any jurisdiction to give effect to the prayer of the petitioner for recording mutation on the basis of the Will in her favour. Even in the order passed by the collector on 11.04.2011, it was not held that the revenue authorities lack any jurisdiction in the subject matter pending before them. In the facts and circumstances the benefit of section 14 of the limitation act cannot be availed by petitioner.
36. Section 15 of the Limitation Act provides as follows :-
15. Exclusion of time in certain other cases.--(1) In computing the period of limitation of any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.
(2) In computing the period of limitation for any suit of which notice has been given, or for which the previous consent or sanction of the Government or any other authority is required, in accordance with the requirements of any law for the time being in force, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded.
Explanation.--In excluding the time required for obtaining the consent or sanction of the Government or any other authority, the Om Wati Vs State and Ors PC no. 50400/16 Page no. 25 of 30 date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both be counted.
(3) In computing the period of limitation for any suit or application for execution of a decree by any receiver or interim receiver appointed in proceedings for the adjudication of a person as an insolvent or by any liquidator or provisional liquidator appointed in proceedings for the winding up of a company, the period beginning with the date of institution of such proceeding and ending with the expiry of three months from the date of appointment of such receiver or liquidator, as the case may be, shall be excluded.
(4) In computing the period of limitation for a suit for possession by a purchaser at a sale in execution of a decree, the time during which a proceeding to set aside the sale has been prosecuted shall be excluded.
(5) In computing the period of limitation for any suit the time during which the defendant has been absent from India and from the territories outside India under the administration of the Central Government, shall be excluded.
37. None of the sub sections of section 15 is applicable to the facts and circumstances of the present case. Neither the institution of the petition was stayed by any injunction order nor the consent or sanction of any government or authority was Om Wati Vs State and Ors PC no. 50400/16 Page no. 26 of 30 required prior to institution of petition, nor the petitioner is a company for application of sub section 3 nor can sub sections 4 and 5 be said to be applicable by any stretch of imagination. Hence, petitioner cannot avail benefit of section 15 of Limitation Act.
38. Now the court shall examine whether the petition filed by the petitioner, on the face of it can be said to be within the period of limitation.
39. Learned counsel for petitioner in his written submission has relied upon judgment in the case of in Krishan Kumar Sharma VS Rajesh Kumar Sharma (supra) and upon Kunvarjeet Singh Khandpur (supra). Ratio decidendi of both these cases is that Article 137 of the Limitation Act applies to the petitions for probate or letters of administration under the Indian Succession Act. It was further held that the limitation period for filing the petition for probate or letters of administration would not begin immediately after the death of testator but the right to apply would accrue when it becomes necessary to apply. Such necessity may not necessarily be within 3 years from the date of death of deceased.
40. Even in his written submissions learned counsel for petitioner has stated that it is settled proposition for the purpose of limitation in a probate case, Article 137 of Limitation Act is Om Wati Vs State and Ors PC no. 50400/16 Page no. 27 of 30 application. As per Article 137 of Limitation Act the period of 3 years is provided as Limitation Period from the date when the right to apply accrues. Hence the relevant question would be when the right to apply accrued in favour of the petitioner. Learned counsel for petitioner has submitted that the right to apply accrued in favour of petitioner only on 11.04.2011 when the litigation before the revenue court as well as appellate court came to an end.
41. Hon'ble High Court of Delhi in the case of Amit and Ors.
VS State of NCT of Delhi & Ors, FAO No. 402/2015 decided on 12.10.2017, held that no doubt, in view of the judgment of Hon'ble Supreme Court in the case of Kunvarjeet Singh Khandpur, limitation period for filing of a petition for probate is three years under Article 137 of the Limitation Act. However, the period of three years commences when the cause of action accrues or the right to apply accrues. It was further held that the need to file the probate petition i.e. the cause of action to file the probate petition arises when the subject Will is specifically denied by the objectors to the notice/knowledge of the appellants/petitioners or their predecessor-in-interest. It is only on the denial of the validity etc. of the subject Will as brought to the knowledge of the appellants/petitioners then limitation would begin for filing of the probate petition.
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42. In the case in hand the need to file the probate petition i.e. the cause of action for filing the probate petition had arisen when the subject Will was first specifically denied by the respondents to the notice/knowledge of the petitioner.
43. Now according to petition itself the petitioner had applied for mutation on the basis of deed of Will dated 25.08.1975 in her favour, before the Tehsildar concerned on 04.05.1978 itself. In para 07 of the petition it is also stated that on 13.06.1978 Longa Ram the predecessor-in-interest of the respondent had filed a declaration on the stamp paper declaring that during the life time of the father of petitioner, he did not execute any Will in favour of anyone. Hence the Will in favour of petitioner was objected to by Sh. Longa Ram way back in the year 1978 within the knowledge of petitioner. This fact is further clear from the document filed by the petitioner titled as Written Submissions on behalf of her in the court of RA/SDM, Model Town. It is categorically stated in the said written submissions that petitioner had applied for mutation on the basis of Will of his father and said mutation was objected by Sh. Longa Ram nephew of Sh. Todar Mal vide application dated 04.05.1978. It is further stated that in the said application statement of Longa Ram was recorded by Naib Tehsildar on 27.02.1979 and in his statement he has categorically said that no Will was left behind by late Sh. Todar Mal. It is further stated that there is another statement recorded by Naib Tehsildar at page 241 of the file which does not mention about any Will of Sh.
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Todar Mal. There is further a mention of affidavit dated 13.06.1978 of Longa Ram at page no. 225 in which Longa Ram also said that there is no Will of Todar.
44. In the facts and circumstances, it can be said by certainty that the Will in favour of the petitioner was denied by his uncle Longa Ram way back in the year 1978. Hence, the cause of action to file the probate petition had accrued in favour of petitioner way back in the year 1978 when the alleged Will executed by her father was denied by Sh. Longa Ram. In the facts and circumstances the petition filed on 23.08.2012 is beyond limitation period.
45. The preliminary issue is accordingly decided against the petitioner. In view of the mandate of section 3 of the Limitation Act, the petition is dismissed being barred by limitation. Copy of order be sent to parties on their respective emails, if their email IDs are available on file.
46. File be consigned to record room.
Announced through video conferencing on Web-ex app on the 10th day of August, 2020 AJAY Digitally signed by AJAY PANDEY PANDEY Date: 2020.08.10 17:04:47 +05'30' (Ajay Pandey) Additional District Judge-02 (N-W) Rohini Court/Delhi Om Wati Vs State and Ors PC no. 50400/16 Page no. 30 of 30