Karnataka High Court
Jagjeevan Prasad vs Parvathi Bai on 28 January, 2013
Author: N.Kumar
Bench: N.Kumar
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IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 28TH DAY OF JANUARY 2013
BEFORE
THE HON'BLE MR.JUSTICE N.KUMAR
WRIT PETITION No.6413 OF 2007(GM-CPC)
BETWEEN:
JAGJEEVAN PRASAD
S/O LAXMINARAYANA PRASAD SHUKLA
AGED ABOUT 46 YEARS
OCC: PRINCIPAL, N.V. POLYTECHNIC
R/O GULBARGA
DISTRICT GULBARGA - 585 102 ... PETITIONER
(BY SRI R.S.SIDHAPURKA, ADVOCATE)
AND:
1. PARVATHI BAI
AGED ABOUT 52 YEARS
OCC: HOUSEHOLD
R/O DEVI COLONY
ALAND ROAD
GULBARGA-585 104
DISTRICT GULBARGA
2. RITA BAI
AGED ABOUT 30 YEARS
OCC: HOUSEHOLD
R/O DEVI COLONY
ALAND ROAD
GULBARGA-585 104
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3. GEETA BAI
AGED ABOUT 28 YEARS
OCC: HOUSEHOLD
R/O JHOPADPATTI
NEAR BIJAPUR NAKA
SHOLAPUR
MAHARASTRA STATE
4. REKHA BAI
AGED ABOUT 26 YEARS
OCC: HOUSEHOLD
R/O DHETURA VILLAGE
TALUK AND DISTRICT SHOLAPUR
MAHARASTRA STATE
5. MITHUN PRASAD
AGED ABOUT 23 YEARS
OCC: UNEMPLOYED
R/O DEVI COLONY
ALAND ROAD
GULBARGA-585104
ALL CLAIM THEMSELVES TO BE THE
LEGAL HEIRS OF THE DECEASED
MANOHAR PRASAD SHUKLA
... RESPONDENTS
(BY SRI R.A.PATIL, ADVOCATE)
THIS WRIT PETITION FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 4.4.2007 PASSED IN CIVIL
MISC.CASE.NO.36/2003 BY THE PRL. DISTRICT JUDGE
GULBARGA, THE CERTIFIED COPY OF WHICH IS PRODUCED
ANX-F.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
This writ petition is filed challenging the order passed by the learned Principal District Judge, Gulbarga allowing I.A.No.1 filed under Section 5 of the Limitation Act and condoning the delay in filing the petition under Section 263 of the Indian Succession Act, 1925 and posting the case for hearing of the main petition on merits.
2. Petitioner instituted proceedings before the First Additional District Judge, Gulbarga for grant of probate of the Will dated 04.11.1993 executed by one Manohar Prasad in his favour bequeathing the agricultural land Sy.No.38 measuring 35 acres 8 guntas situated at Gulbarga. The Testator died on 02.05.2000. Therefore, the petitioner sought for grant of probate. The order granting probate was passed on 15.03.2001 and probate was duly signed on 25.08.2001. The said land was the subject matter of acquisition. The said 4 Manohar Prasad had preferred an appeal in MFA No.2534/2000 seeking enhancement of compensation. On the basis of the probate granted, the petitioner filed an application to come on record as legal representative of deceased Manohar Prasad. In the said miscellaneous first appeal, respondent Nos.1 to 5 herein claiming to be the wife and children of deceased Manohar Prasad also filed an application to come on record as legal representatives of the deceased Manohar Prasad. As the probate had already been granted in favour of the petitioner, the High Court directed the respondents to agitate their right before an appropriate forum. Thereafter, they have filed MFA No.5117/2002 challenging the grant of probate. The said appeal in MFA No.5117/2002 came to be dismissed as not maintainable. It is thereafter, respondent Nos.1 to 5 presented a petition under Section 263 of the Indian Succession Act, 1925 for revocation of the probate granted earlier. They also filed an application under 5 Section 5 of the Limitation Act for condoning the delay. If there is delay in the aforesaid circumstances, it is a bonoafide one and as they were prosecuting the matters before other forums, it would constitute sufficient cause and therefore sought for condoning the delay. The said application for condoning the delay was contested by the petitioner herein in Miscellaneous Case No.36/2003. The learned Judge was of the view that though Article 100 of the Limitation Act, 1963 has no application to the case as contended by the petitioner herein but he relied on the provisions of Section 27 of Code of Civil Procedure, 1908 and held that the Court has power to extend the time for making an application and therefore, he condoned the delay as being for sufficient cause and posted the case for hearing on merits. It is that order which is challenged before this Court.
3. This Court on 18.08.2009, framed the following question of law:
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"The question for decision making is whether Article 100 or Article 137 of the Limitation Act, 1963 applies to set aside the decision granting probate of a Will of a Hindu under the Indian Succession Act?"
4. Learned counsel for the petitioner assailing the impugned order contended that Article 137 has no application to the proceedings for revocation of probate. According to him, the case squarely falls under Article 100 of Limitation Act and the application for revocation is filed beyond one year period, the application was not maintainable. He further contends that Section 5 of the Limitation Act has no application to an application filed under Article 100 and therefore, question of condoning the delay would not arise.
5. Per contra, learned counsel for the respondents submits that Article 100 has no application in respect of case for revocation of probate. Even otherwise, Article 137 is applicable as held by the Apex Court in recent 7 decisions. He submits when once Article 137 is held applicable, application is filed well within three years period and there is no bar of limitation at all. The application filed under Section 5 of the Limitation is on the basis of misconception and therefore, he submits seen from any angle, the impugned order is valid and legal and do not call for interference.
6. Application is filed under Section 263 of the Indian Succession Act, 1925 for revocation or annulment of the probate already granted for the cause mentioned in the said section. The Indian Succession Act, 1925 (for short, hereinafter referred to as 'the Act') do not prescribe any period of limitation for filing such application. Nor there is any express prohibition for application of the Limitation Act, 1963 to probate proceedings. Therefore, the provisions of Limitation Act is attracted in terms of Section 29(2) of the Limitation Act, 1963. The reliance is placed on Article 100. It falls under Part - IX under the heading Suit relating to 8 miscellaneous matters. It provides one year limitation from the date of final decision or the order by the Court or the date of act or the order of the officer as the case may be. The description of the nature of proceedings is in the first column i.e., to alter or set aside any decision or order of a Civil Court in any proceeding other than a suit or any act or order of an Officer of the Government in his official capacity. The application is filed for revocation of probate. It is not an application filed for altering or setting aside the decision or the order of a Civil Court in any proceeding other than a suit. Article 137 of the Limitation Act deals with applications. It provides for any other application for which no period of limitation is provided elsewhere in the decision. Three years is the time from the date when the right to apply accrues. The Apex Court had an occasion to consider whether an application for grant of probate could be construed as an application referred to under Article 137 of the Limitation Act. Repelling the contention that 9 the applications under Article 137 of the Limitation Act is confined only to the application filed under Code of Civil Procedure, relying on the judgment of the Apex Court in the case of THE KERALA STATE ELECTRICITY BOARD, TRIVANDRUM V. T.P. KUNHALIUMMA reported in (1976) 4 SCC 634, it was held that the petition presented to the District Judge as a Court under the Telegraphs Act for judicial decision falls within the scope of Article 137 of the Limitation Act. Following the said judgment, it was held that application for grant of probate and letters of administration is covered by the Article 137 of the Limitation Act. Therefore, it has been held in the absence of specific provisions in the limitation Act prescribing the period for filing a petition for grant of probate, the case would fall under Article 137 of the Limitation Act and the cause of action for filing that application arises from the date the when right to apply for grant of probate arises.
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7. In the light of the aforesaid judgment of the Apex Court, if a petition for grant of probate falls within Article 137 of the Limitation Act, as a corollary it has to be held that application for revocation of probate falls under Article 137 of the Limitation Act. Therefore, application under Article 100 to a such petition is excluded.
8. In the instant case, it is not in dispute that application for revocation of probate is filed within three years from the date of grant of probate. Therefore, there is no delay in filing the petition. Application under Section 5 of the Limitation is attracted, if the application is not filed within the prescribed time under the law. The power conferred on the Court under Section 5 of the Limitation Act is to condone the delay. It is for such condonation of delay, an application has to be filed under Section 5 of the Limitation Act. In that view of the matter, filing of the application under Section 5 11 itself was misconceived as the petition filed for revocation of the probate was well within the time. For the aforesaid reasons, I do not find any merit in this writ petition.
The question of law framed is answered accordingly, i.e., Article 137 is attracted either for filing the petition for probate or for revocation the probate.
Accordingly, the writ petition is dismissed.
Sd/-
JUDGE NB*