Delhi District Court
Objector/ vs Sh. Krishan Kumar on 6 June, 2016
IN THE COURT OF SH. SANJAY KUMAR: ADDL.
DISTRICT JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
Probate Case No.- 42/13
Unique ID Case No. - 02401C0294122013
Smt. Rama Alias Reema
W/o Sh. Ravi Gogia
R/o H.No. 9/99, 2nd & 3rd floor,
Ramesh Nagar,
New Delhi-15
........Objector/Petitioner
Vs.
Sh. Krishan Kumar
S/o Sh. Hem Raj
R/o H.No. 9/99, Ground & 1st floors,
Ramesh Nagar, New Delhi-15
......Respondents
Date of institution of the case : 07.06.2013
Date reserved for judgment on : 01.06.2016
Date of pronouncement of judgment : 06.06.2016
JUDGMENT:
1 An application/ petition under Section 263 read with Section 282 & 283 of Indian Succession Act for Revocation/Annulment of Letter of Administration with copy of Will granted in favour of Krishan Kumar, respondent in Probate petition No. 287/88 dated 11.10.1988 under the titled "Sh. Hem Raj Vs State" vide order dated 22.11.1991 by the court of Sh. P.K. Jain, the then Ld. District & Sessions Judge, Delhi and for punishment of respondent u/s 193 IPC as provided under Section 282 of the Indian Succession Act has been filed.
PC No.42/13 Smt. Rama @ Reema Vs Krishan Kumar 1/9 2 The present application/petition is accompanied by another application under Section 5 of Limitation Act read with Section 151 CPC.
3 The petitioner is seeking revocation and annulment of the Letter of Administration granted in favour of respondent Krishan Kumar on the ground that Hem Raj, petitioner in the main petition or his L.Rs did not produce the original will during the trial and copy was wrongly exhibited as Ex. P3. It is stated that none of the marginal witness appeared in the court in order to prove the execution or validity of the alleged will. It is stated that alleged will is forged, fabricated and fraudulent. It is apparent from the fact that Will does not appear any signatures of Sh. Tek Chand which are in Urdu language.
4 It is further stated that there are several suspicious circumstances regarding the deteriorating, ill health of Sh. Tek Chand who was not in a sound physical or mental health and died after 7-8 days of the alleged will.
5 It is stated that Hem Raj, petitioner in the main petition has not filed any list of near relative of the deceased, Sh. Tek Cghand. The valuation of the property involved is also wrongly mentioned as Rs. 15,000/-. PW-2 Hem Raj stated a wrong and false statement before the court.
6 It is stated that applicant/petitioner has purchased the second and third floor of the property and she has right, title and interest in the property. It is further stated that Sh. Krishan Kumar has played a fraud and cheating upon the applicant. In PC No.42/13 Smt. Rama @ Reema Vs Krishan Kumar 2/9 the petition Krishan kumar stated that Sh. Tek Chand left behind a widow Smt. Krishna but no notice was issued to her, therefore, entire proceedings are under the shadow and require that letter of administration may be revoked.
7 It is stated that letter of administration/probate granted to respondent may kindly be ordered to be revoked and annulled and respondent may be punished for forgery, perjury, fraud and other offences.
8 In the application for condonation of delay the applicant stated that the second and third floor of H. No. 9/99, Ramesh Nagar, New Delhi was purchased by the applicant from one Raj Kumar Kohli in the year 2005 who had purchased from respondent Krishan Kumar alleged to be the owner of the property. Certain dispute amongst the petitioner and Krishan Kumar was arose two to three months prior to filing of the present petition and came to know about the letter of administration with copy of will granted to Krishan Kumar on 22.11.1991. It is stated that petitioner was never a party to earlier proceedings nor any notice was issued to her. She came to know only two-three months prior to filing of the application/petition. In the application the following judgments are mentioned:
1. AIR 1924 Mad 578 (DB)
2. AIR 1931 Cal 717 (DB)
3. AIR 1916 Cal 938 (DB)
4. AIR 1974 Pat 434 (DB)
5. ILR 6 Cal 707
6. AIR 1959 Pat 570
7. AIR 1915 Cal 421 PC No.42/13 Smt. Rama @ Reema Vs Krishan Kumar 3/9 9 It is stated that application may be allowed and delay may be condoned.
10 Respondent Krishan Kumar filed a detailed reply and taken preliminary objection that objections are not maintainable as filed at highly belated stage and barred by limitation. It is stated that applicant is not the LR/legatee or not a person related to Sh. Tek Chand or Sh. Hemraj, therefore, she has no right to file the present objection petition. It is further stated that the probated order has already been attained the finality, therefore, present petition is liable to be dismissed.
11 It is stated that objector is a stranger to the Probate proceedings which was taken place about 25 years ago. The applicant has filed the present proceedings only to harass the respondents.
12 On merit all the averments are denied. It is stated that original will of Sh. Tek Chand was filed on record and same was exhibited as P3 and same was proved by summoning the witness from the office of Sub-Registrat, Kashmere Gate as PW-1.
It is further stated that applicant/objector neither a beneficiary of Sh. Tek Chand or Hemraj. It is stated that application/petition is liable to be dismissed and letter of administration/probate granted 25 years ago cannot revoked or annuled. There is no material on record for commission of any offence by the respondents.
13 I have heard arguments on Section 5 of Limitation Act addressed at length by Sh. Harish Kohli and Sh. Siddarth Singh, PC No.42/13 Smt. Rama @ Reema Vs Krishan Kumar 4/9 counsel for the applicant and also gone through the written submissions filed on behalf of objector/applicant. Opportunity was granted to the respondent to file written arguments by 31.05.2016, however, no written arguments filed on behalf of the respondent.
14 It is admitted case of the applicant/objector that in the year 2005 she had purchased the property in question I.e second and third floor from one Sh. Raj Kumar Kohli in the year 2005. She has no direct relation with the respondent Krishan Kumar. It is further admitted on record that she is neither a legatee or having any interest, right, titled left back to the deceased Sh. Tek chand or his successor Hem Raj who was petitioner in the main petition. She is purchaser of the property in the year 2005. It is admitted on record that present petition has been filed on 07.06.2013 after about eight years of purchasing of the property.
15 Let us peruse the law laid down by Appex Court. The question for consideration, is whether the petition for grant of Probate/ Letter of Administration is governed by the provision of Article 137 of the Limitation Act. Come up in the case of "KUNVARJEET SINGH KHANDPUR VS. KIRANDEEP KUAR", 2008 SCC, Supreme Court of India, while answering whether Article of Limitation Act applies to the application for probate held as under "The genesis of Article 137 of the Limitation Act can be traced from Article 181 of the Limitation Act, 1959. The Limitation Act contains different periods for a specified application. Even in the Limitation Act of 1908 where there is no period provided for a specific application, a residuary clause is included providing limitation for other applications. Article 181 of the Limitation Act, 1908 being the residuary cluase contemplates PC No.42/13 Smt. Rama @ Reema Vs Krishan Kumar 5/9 the application for which no period of limitation is provided elsewhere in the schedule or by Section 48 of the Code of Civil Procedure, 1908 which was retained in the Limitation Act of 1963 with certain modification, which can be reasonably ascertained from the comparison of two provisions, which are depicted below:
"181. Application for which Three years when the right to period of limitation is pro-apply accrues.
Vided elsewhere in this schedule or by Section 48 of the Code of Civil Procedure,1908.
137. Any other application for Three years when the which no period of right to apply accrues limitation is provided elsewhere in this Division."
Such distinction is well explained by the Hon'ble Supreme Court in case of Kerala SEB Vs.T.P. Kunhaliumma, reported in (1976)4 Supreme Court Cases 634 in these words:-
"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 Act shown that applications contemplated under Article 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 word 'any 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. 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 the applicant or the appellant satisfies the court that he had sufficient cause for not preferring 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 Athani Municipal PC No.42/13 Smt. Rama @ Reema Vs Krishan Kumar 6/9 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 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 of the 1963 Limitation Act."
Thus, an application under any specified Act before the Civil Court is application conceived under Article 137 of the Limitation Act, 19963 as the distinction, which was sought to be made under Artilce 181 of the Limitation Act, 1908 have been obliterated by deletion and amendment of article 137 of the Limitation Act, 1963. it is no longer res integra that any other applications is not restricted to an application under the Code of Civil Procedure, but an application under special statue being filed before the Civil Court.
16 Hon'ble Supreme Court of India, further in the case of KRISHAN KUMAR SHARMA VS. RAJESH KUMAR SHARMA (2009) SCC, held that Article 137 of Limitation Act is applicable in case of Probate/ Letter of Administration but applicable as per judgment of in case "KUNVARJEET SINGH KHANDPUR VS. KIRANDEEP KUAR", 2008 SCC, (Supra) "16. Rejecting Mr. Dalpatrai's contention. I summarise my conclusion 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;
(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 along as as the right to PC No.42/13 Smt. Rama @ Reema Vs Krishan Kumar 7/9 do so survive 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 from the date of the 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."
Conclusion (b) is not correct while Conclusion (c) is the correct position of law.
17 It is stated that the limitation period of 3 years for filing the probate proceedings accrued when petitioner purchased the 2nd and 3rd floor of the property in question in the year 2005. The present probate petition was as such required to be filed within 3 years starting from the date of purchasing of property by the petitioner/applicant. The last day of filing the present probate petition is as such . The present probate petition, however, admittedly has been filed on 07.06.2013 way beyond the period of limitation as provided under Article 137 of the Limitation Act and liable to be dismissed on ground of barred by limitation.
18 Now applying the above discussed principal of law in present case the cause of action arises in the year 2005 when the applicant/petitioner purchased the 2nd and 3rd floor of property in question. As per Article 137 Limitation Act three PC No.42/13 Smt. Rama @ Reema Vs Krishan Kumar 8/9 years period completed in the December, 2008. Admittedly, the present petition is filed after about eight years of the purchase of the property in the year 2005, therefore, it is barred by limitation. In these circumstances, Section 5 of Limitation Act is not applicable, therefore, delay cannot be condoned. More so as per the article the application has been filed with respondent has taken the objections of limitation. It is pertinent to mention here that applicant is stranger to the probate proceedings which were about 25 years back. She has no direct relations with the deceased Sh. Tek Chand or his successor Sh. Hem Raj or Krishan Kumar. She is purchaser of the property from third person Sh. Krishan Kumar Kohli, therefore, she is also not having any locus standi to challenge the letter of administration granted.
19 On the basis of the above discussion the application/petition under Section 263 of Indian Succession Act is barred by limitation, therefore dismissed. File be consigned to record room.
(Announced in the open (SANJAY KUMAR)
court on 06.06.2016 ADJ-02 (West)
Tis Hazari Courts
Delhi
PC No.42/13 Smt. Rama @ Reema Vs Krishan Kumar 9/9
PC No.42/13 Smt. Rama @ Reema Vs Krishan Kumar 10/9