Gujarat High Court
Habibbhai Ishabhai Sandhi vs Ibrahimbhai Ishabhai Sandhi on 24 March, 2023
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/FA/1098/2019 CAV JUDGMENT DATED: 24/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1098 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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HABIBBHAI ISHABHAI SANDHI
Versus
IBRAHIMBHAI ISHABHAI SANDHI
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Appearance:
MR SP MAJMUDAR(3456) for the Appellant(s) No. 1,2
for the Defendant(s) No. 2
MR J G VAGHELA(3971) for the Defendant(s) No.
1,2.1,2.2,2.3,2.4,2.5,2.6,2.7,3
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 24/03/2023
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Page 1 of 10 Downloaded on : Fri Mar 24 20:49:57 IST 2023 C/FA/1098/2019 CAV JUDGMENT DATED: 24/03/2023 The present First Appeal is preferred against the order dated 15.12.2018 passed below exhibit 42 application by learned Second Additional Senior Civil Judge, Morbi, in Special Civil Suit No. 24 of 2017.
Application exhibit 42 was filed by the respondent-defendant under Order 7 Rule 11 of the Civil Procedure Code, 1908, which came to be allowed and plaint-cum-application of the appellant-plaintiff came to be rejected.
2. It was originally filed by the appellant was Probate Application No. 6 of 2016 in respect of Will dated 24.02.1997. After objections were raised by the respondents, the said probate application was converted into Special Civil Suit No. 24 of 2017. In those proceedings, application exhibit 42 came to be filed and culminated into impugned order.
3. Ishabhai Sandhi who was father of the parties died on 05.03.1997. Said Ishabhai married twice. The appellants happen to be children from the second wife whereas respondents are children of first wife of deceased Ishabhai. The deceased had made registered Will dated 24.02.1997 bequeathing his properties to the appellants.
3.1 In the year 2006, the appellants approached the Mamlatdar seeking mutation in the record of rights on the basis of the Will of the deceased Ishabhai. Mutation entry no. 6008 was initially entered, Page 2 of 10 Downloaded on : Fri Mar 24 20:49:57 IST 2023 C/FA/1098/2019 CAV JUDGMENT DATED: 24/03/2023 however, upon it become in dispute as the respondents objected to it, it was rejected on 14.06.2006. The competent authority refused to certify the same.
3.2 After mutation no. 6008 was not certified and was rejected in the year 2006, the probate application was filed by the appellants in the year 2006 by filing application exhibit 42 under Order 7 Rule 14, CPC. The respondents contended that the probate application converted into suit was barred by law of limitation.
3.3 Article 137 of the Limitation Act, 1963, was relied on to contend that the plaint of Special Civil Suit stood barred by limitation.
3.4 The Court below took the view that Article 137 of the Limitation Act applies to all applications, including the probate application as well. The limitation thereunder was three years. It was noticed by the Court below to hold that the probate application-suit was beyond the period of limitation, therefore not competent to be maintained in law.
4. Learned advocate Mr. P.P. Majmudar for the appellants assailed the impugned order rejecting the plaint to contend that the application was maintainable under the provisions of the India Succession Act, that the limitation was mixed question of law and fact and that Article 135 of the Limitation Act was misread and misapplied by the Page 3 of 10 Downloaded on : Fri Mar 24 20:49:57 IST 2023 C/FA/1098/2019 CAV JUDGMENT DATED: 24/03/2023 Court.
4.1 On the other hand, it was seriously submitted by learned advocate for the respondent Mr. J.C. Vaghela that Ishabhai Sandhi passed away on 05.03.1997. He made will on 24.02.1997 before few days of his death bequeathing the properties to the original plaintiffs-appellants. It was submitted that in the year 2006, the appellants made an application to the Mamlatdar's office for mutation of the entry in the land records and to transfer the properties of late Ishabhai Sandhi to their name on the basis of the said Will. The mutation entry no. 6008 was not certified by order dated 14.07.2006.
4.2 It was submitted that thereafter as late as in the year 2016, the appellants made application before the Court of learned Principal Civil Judge for getting probate and the said application was converted to Testamentary Suit No. 24/17 as per section 295 of the India Succession. According to submission of learned advocate for the respondents, the cause of action arose in the year 2006. According to his submission, the limitation period for obtaining probate certificate under Article 137 of the Limitation Act was 3 years. The application was therefore time barred, it was submitted. He submitted that right to apply accrued when the mutation was rejected and not certified.
Page 4 of 10 Downloaded on : Fri Mar 24 20:49:57 IST 2023C/FA/1098/2019 CAV JUDGMENT DATED: 24/03/2023 4.3 It was submitted on behalf of the respondent that though Article 137 of the Limitation Act is applicable to the application for probate certificate or letters of administration, what is important is as to when right to apply would accrue. According to his submission, right to apply under Article 137 would accrue when it becomes necessary to apply. The limitation period, it was submitted, will began with accrual of right to apply and that the application should have been filed within a period of three years.
4.4 Learned advocate for the respondent relied on decision of the Sameer Khanna vs. State of Delhi[2020 (12) SCC 480]. In that case, the Will was made in the year 1990 and the probate certificate was obtained from the Court in England in the year 1997. The testator passed award in the year 2000. The respondent made application thereafter for grant of letter of administration in the year 2001 in respect of properties located in Delhi. The contention was that it was time barred since the will was probated in the year 1997.
4.5 Yet another decision of Calcutta High Court in Hanuman Prasad Agarwal v. Satyanarain Agarwal[AIR 2020 Calcutta 246], came to be relied and it was submitted that reference to paragraph 7 thereof that the right to accrue under Article 137 implies the death of the testator or any other event, which Page 5 of 10 Downloaded on : Fri Mar 24 20:49:57 IST 2023 C/FA/1098/2019 CAV JUDGMENT DATED: 24/03/2023 compels a party to approach the Court of law.
5. The controversy centers around the applicability of Article 137 of the Limitation Act from the period of limitation to be applied for filing application for grant of probate or letters of administration. In Kunvarjeet Singh Khandpur v. Kirandeep Kaur & Ors. [(2008) 8 SCC 463], the Supreme Court addressed two questions; firstly about the applicability of Article 137 of the Limitation Act in relation to right to file application for probate or letters of administration and secondly, whether the petition dealt with by the Supreme Court were within time. On the basis of the the Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma [1976 (4) SCC 634], it was held that any application to civil court under the Act is covered under Article 137, which will include the application made in terms of section 264 of the Succession Act, 1925.
5.1 The Court was considering the question of limitation to be applied for filing application for grant of probate or letters of administration.
5.2 Article 137 of the Limitation Act deals with "Any other application for which no period of limitation is provided elsewhere in the Division". The period of limitation prescribed is three years and time from which the period would begin to run would be when the right to apply accrues.
Page 6 of 10 Downloaded on : Fri Mar 24 20:49:57 IST 2023C/FA/1098/2019 CAV JUDGMENT DATED: 24/03/2023 5.3 After referring to Article 137, the Supreme Court in Kunvarjeet Singh Khandpur (supra), referred to with approval the decision of Madras High Court in S. Krishnaswami and etc. etc. v. E. Ramiah (AIR 1991 Madras 214) and quoted para 17 of the Madras High Court's judgment, "17. In a proceeding, or in other words, in an application filed for grant of probate or letters of administration, no right is asserted or claimed by the applicant. The applicant only seeks recognition of the Court to perform a duty. Probate or letter of Administration issued by a competent Court is conclusive proof of the legal character throughout the world. An assessment of the relevant provisions of the Indian Succession Act, 1925 does not convey a meaning that by the Proceedings filed for grant of probate or letters of administration, no rights of the applicant are settled or secured in the legal sense."
5.3.1 It was explained, "The author of the testament has cast the duty with regard to the administration of his estate, and the applicant for probate or letters of administration only seeks the permission of the Court to perform that duty. There is only a seeking of recognition from the Court to perform the duty. That duty is only moral and it is not legal. There is no law which compels the applicant to file the proceedings for probate or letters of administration."
5.3.2 The Madras High Court then observed, "With a view to discharge the moral duty, the applicant seeks recognition from the Court to Page 7 of 10 Downloaded on : Fri Mar 24 20:49:57 IST 2023 C/FA/1098/2019 CAV JUDGMENT DATED: 24/03/2023 perform the duty. It will be legitimate to conclude that the proceedings filed for grant of probate or letters of administration is not an action in law. Hence, it is very difficult to and it will not be in order to construe the proceedings for grant of probate or letters of administration as applications coming within the meaning of an 'application' under Art. 137 of the Limitation Act, 1963."
5.4 It also then referred with approval the decision of the Bombay High Court in Vasudev Daulatram Sadarangani v Sajni Prem Lalwani (AIR 1983 Bom.268), in which it was inter alia held that under the Limitation Act, no priority is advisedly prescribed within which the application for probate or letters of administration or succession certificate should be made. It was also held that the assumption that under Article 137, right to apply necessarily accrues from the date of death of the deceased was unwarranted. It was observed that delay in making such application could not be equated with absolute bar of limitation.
5.5 The Supreme Court in Kunvarjeet Singh Khandpur (supra), stated that the crucial expression was "right to apply under Article 137, it was observed, "The crucial expression in the petition (sic Article) is "right to apply". In view of what has been stated by this Court, Article 137 is clearly applicable to the petition for grant of Letters of Administration. As rightly observed by the High Court in such proceedings the application merely seeks recognition from the Court to perform a duty because of the nature of Page 8 of 10 Downloaded on : Fri Mar 24 20:49:57 IST 2023 C/FA/1098/2019 CAV JUDGMENT DATED: 24/03/2023 the proceedings it is a continuing right."
5.6 This Court in Bhupendrabhai Samjubhai v. Diwaliben[(2013) 3 GLR 2177], held that delay in making application for letters of administration of will, which in that case was filed after 15 years would not be a vitiating aspect. It was held that delay will not bar such application.
5.7 Therefore, it is well settled that right to apply for probate or letters of administration under the Succession Act, 1955 is held to be a continuing right. The "right to apply" within the meaning of Article 137 will be a continuing right. It was judicially explained that in such proceedings, the application for probate or letters of administration only seeks recognition from the court to perform duty. It was held that purport of law is that by virtue of the very nature of the proceedings, it is continuing right.
5.8 Seeking to get probate or letters of administration is a moral obligation activated and that it is not action in law stricto senso, rightly perceives the Madras High Court. The obligation of such nature, even if a blend of moral and legal duty, would envisage for its enforcement a continuous cause of action, a kind of continuing right.
6. For the foregoing reasons and the position of law discussed, the view of the Court below in Page 9 of 10 Downloaded on : Fri Mar 24 20:49:57 IST 2023 C/FA/1098/2019 CAV JUDGMENT DATED: 24/03/2023 treating the application of the appellant for probate of the Will to be barred by limitation could hardly sustain. The reasoning was misconceived with since the entry was not certified in the year 2006, three years would have to be counted from the said date. It was not correct to view the application to be barred by Article 137 of the Limitation Act. The very nature of the proceedings and the nature of cause which is continuous would permit the appellant to maintain the application.
6.1 The impugned order dated 15.12.2018 passed below exhibit 42 application by learned Second Additional Senior Civil Judge, Morbi, in Special Civil Suit No. 24 of 2017 is hereby set aside.
7. The appeal stands allowed.
The Special Civil Suit No. 24 of 2017 shall proceed in accordance with law.
(N.V.ANJARIA, J) (SANDEEP N. BHATT,J) BIJOY B. PILLAI Page 10 of 10 Downloaded on : Fri Mar 24 20:49:57 IST 2023