Calcutta High Court (Appellete Side)
Shibashri Banerjee vs Partha Sarathi Banerjee on 21 December, 2016
Author: Harish Tandon
Bench: Harish Tandon
1 13 21.12. C.O. 1898 of 2016 AGM 2016 Shibashri Banerjee Versus Partha Sarathi Banerjee Ms. Shibashri Banerjee, .... Petitioner in person.
Ms. Bina Baidya, .... For the opposite party.
This revisional application is directed against order no. 6 dated 10th December 2015 passed by learned Additional District Judge, Sealdah in O.S. No. 10 of 2015 by which an application for dismissal of the said proceeding was dismissed holding that the bar under Order 9 Rule 9 of the Code of Civil Procedure has no manner of application in the probate proceeding.
The learned Judge proceeded to dismiss the application taken out by the petitioner solely relying upon a Division Bench judgment in case of Bimla Kanta Sengupta -Vs- Sarojini Koner reported in AIR 1985 Calcutta 275 wherein it is held that there is no period of limitation provided for applying the probate of the will and, therefore, the separate proceeding is maintainable and the bar under Order 9 Rule 9 of the Code of Civil 2 Procedure shall not be attracted.
In course of hearing of the instant revisional application, a further point fell for consideration whether Article 137 of the Limitation Act, 1963 can be made applicable to a probate proceeding. The said point assumes significance because of the findings recorded by the Division Bench in case of Bimla Kanta Sengupta (supra), wherein it was held that there is no period of limitation provided for filing an application for grant of probate. This Court feels that the matter has been set at rest by the Supreme Court in a judgment rendered in case of Krishan Kumar Sharma -Vs- Rajesh Kumar Sharma reported in (2009) 11 Supreme Court Cases 537 wherein it is held that Article 137 of the Limitation Act which provides the period of three years for filing any application for which no period of limitation is provided elsewhere in the division and time from which such period would begin is stated when the right to apply accrues.
The expression 'right to apply' was interpreted when the occasion to apply for probate arises and if such application has not been filed within three years from the 3 date of accrual of such right, such proceeding would be hit by Article 137 of the Limitation Act. It would be relevant to quote the relevant excerpts from said judgment which runs thus :
" The crucial expresion 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 and because of the nature of the proceedings it is a continuing right. The Division Bench of the Delhi High Court referred to several decisions. One of the them was S. Krishnaswami. In para 17 of the said judgment it was noted as follows:
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 lett4ers 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 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. The author of the testament has case 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. With a view to discharge the moral duty, the applicant seeks recognition from 4 the court to 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 Article 137 of the Limitation Act, 1963."
14. Though the nature of the petition has been rightly described by the High Court, it was not correct in observing that the application for grant of probate or letters of administration is not covered by Article 137 of the Limitation Act. Same is not correct in view of what has been stated in Kerala SEB case.
15. Similarly reference was made to a decision of the Bombay High Court in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani. Para 16 reads as follows :
'16. Rejecting Mr. Dalpatrai'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;
(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 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 5
(g) Once execution and attestation are proved, suspicion of delay no longer operates."
These aspects were highlighted in Kunvarjeet Singh Khandpur -vs- Kirandeep Kaur, at SCC pp 466-68, paras 11-15."
It is, therefore, amply clear from the law enunciated in the said report that though there is no period of limitation provided for filing an application for probate but such period would begin the moment right to apply accrues and/or arises. Since the provision contained under Article 137 of the Limitation Act has been expressly extended to a probate proceeding provided the circumstances warrants filing of such probate application, the ratio laid down in Bimla Kanta Sengupta (supra) to such extent is no longer good law. There is no difficulty in say that there is no prescribed period of limitation for filing an application for probate as the schedule appended to Limitation Act does not expressly provided so. The moment the right to apply arose the application must have been filed within the time indicated under Article 137 of the Limitation Act and if such application is taken beyond such period, the Court can dismiss such proceeding on the anvil of limitation. 6
Admittedly, in the instant case a probate proceeding was initiated when the executor thought it fit that right to apply had accrued. The petitioner lodged a caveat and also filed an affidavit in support thereof raising objection to grant of probate. The said proceeding was converted into a contentious cause and was registered as a regular suit. The said proceeding was allowed to be dismissed for default way back in the year 2007 under Order 9 Rule 8 of the Code of Civil Procedure as the objector was present on the said date.
It is also an admitted fact that an application for restoration of the said proceeding under Order 9 Rule 9 of the Code of Civil Procedure was taken out by the executor along with an application for condonation of delay. The Court did not find the explanation offered in the application for condonation of delay to be sufficient and dismissed the said application; as a resultant effect, the application under Order 9 Rule 9 of the Code stood dismissed. No further steps were taken by the executor against the said order of dismissal and waited till the year 2014 when a fresh application for probate has been filed. The same objector appeared in the said proceeding and 7 raises a preliminary objection on the maintainability thereof. Though a plea was taken that once a probate proceeding has been dismissed in presence of the objector, a fresh suit or proceeding is barred under Order 9 Rule 9 of the Code. Since the plea of limitation is also intricately related and being the pure question of law, this Court invited the learned counsels as well as the petitioner, who is appearing in person, on the said point.
I have already indicated in my preceding paragraph on the applicability of Article 137 of the Limitation Act and in view of the judgment rendered by the Supreme Court in case of Krishan Kumar Sharma (supra), the provision of the Limitation Act equally applies to a probate proceeding as well. Even the Division Bench in case of Bimla Kanta Sengupta (supra) categorically held that once the probate application is converted into a contentious cause, it assumes the trappings of the regular suit and, therefore, the procedural law would guide and regulate such proceeding.
The paragraph 13 of the said report can be safely relied on which is reproduced as under: 8
"13. A contentious probate proceeding has, therefore, all the trappings of a regular suit under the Civil P.C. and depending upon the circumstances of the case, the provisions of the Code are to apply to such proceedings."
Even in paragraph 20, the Division Bench held that Order 9 Rule 9 or Rule 13 of the Code lays down the procedure for restoration of a suit dismissed for default or decided ex parte and, therefore, can be switched into action for setting aside an order of dismissal for default in a probate proceeding by operation of Section 141 of the Code.
The consequences indicated in Rule 9 Order 9 was not held to operate as a bar in initiation of a probate proceeding as there is no period of limitation provided for filing an application for probate. Since the aforesaid proposition of law cannot be said to be good in view of a subsequent Supreme Court case in case of Krishan Kumar Sharma (supra), this Court, therefore, cannot disagree with the decision of the Supreme Court that the bar would not be attracted. Order 9 Rule 9 of the Code expressly provides that if the suit is dismissed for default 9 in absence of the plaintiff but in presence of the defendant, fresh suit for the selfsame reliefs is barred.
Since the probate proceeding after its conversion into a contentious cause has a trappings of regular suit which is guided, regulated and controlled by Code of Civil Procedure, the consequences which would follow from the said provision of the Code shall equally apply.
This Court, therefore, finds that the order of the Trial Court cannot be sustained.
The same is hereby set aside.
The probate proceeding being O.S. 10 of 2015 is dismissed being barred under Order 9 Rule 9 of the Code of Civil Procedure as well as by virtue of Article 137 of the Limitation Act.
The revisional application is thus disposed of. No costs.
10( Harish Tandon, J.)