Kerala High Court
Francis vs Cherupushpam on 25 June, 2009
Author: V. Ramkumar
Bench: V.Ramkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 954 of 2000()
1. FRANCIS
... Petitioner
Vs
1. CHERUPUSHPAM
... Respondent
For Petitioner :SRI.N.P.SAMUEL
For Respondent :SRI.N.SUBRAMANIAM
The Hon'ble MR. Justice V.RAMKUMAR
Dated :25/06/2009
O R D E R
V. RAMKUMAR, J.
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M.F.A. No. 954 of 2000
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Dated, this the 25th day of June, 2009
JUDGMENT
The plaintiffs in O.S. No. 3 of 1998 on the file of the District Court , Thrissur are the appellants in this appeal. The said suit originated as O.P. 88 of 1995 before the District Court, Thrissur, presumably under Sec. 276 of the Indian Succession Act, 1925 originally for the grant of a probate in respect of a Will said to have been executed by one Vareed. Subsequently it was amended as a petition for Letters of Administration under Sec. 278 of the Indian Succession Act. Citations were issued on the O.P. Respondents 1 to 5 to the O.P. after receipt of citations lodged their caveat contesting the matter. Thereupon the O.P. was converted into a regular suit and numbered as O.S. 3 of 1998. The suit for the grant of Letters of Administration was in respect of Ext.A3 Will dated 16-5-1989 executed by Vareed M.F.A. No. 954 of 2000 -:2:- who died of cancer of the throat and tongue on 23-6-1989. Vareed had two daughters in his first wife. Plaintiffs 3 and 4 namely Gracy and Daizy are the said two daughters. After the death of his wife Vareed had married the first defendant Cherupushpam in whom he had begotten four children -- three sons and a daughter. Defendants 2, 4 and 5 are the three sons and the 3rd defendant is the daughter. Vareed, the testator had altogether 16 = cents of land and a building thereon comprised in survey No. 890/1 of Ayyanthole Village. The plaintiffs who sought the grant of Letters of Administration, are two of the brothers of deceased Vareed by name Francis and Philipose and the two daughters of Vareed born to his first wife. The names of those daughters are Gracy and Daisy.
2. As per Ext.A3 Will dated 16-5-1989 Vareed purported to make the following bequest:-
9 = cents with the house thereon was bequeathed to defendants 1 to 5 as the A schedule thereto. The Will recites M.F.A. No. 954 of 2000 -:3:- that if any excess property was subsequently found in the name of the testator that shall stand allotted to the legatees under the A schedule thereto. Three cents of land was allotted to the 4th plaintiff Daisy as the B schedule thereto, two cents of land was allotted to the 3rd plaintiff Gracy as the C schedule. One cent was alotted to his brother the first plaintiff Francis as the D schedule and the remaining one cent was bequeathed to his other brother the second plaintiff Philippose as the E Schedule to Ext.A3 Will.
3. After the case was converted into a contested matter, 4 witnesses were examined on the side of the plaintiffs. P W.1 is the Sub Registrar who registered the instrument. The second plaintiff was examined as P.W.2. The scribe of the instrument was examined as P.W.3 and the attester to the instrument was examined as P.W.4. On the side of the defendants, the first defendant who is the 2nd wife of Vareed was examined as D.W.1 and a neighbour was examined as D.W.2.
4. The first Addl. District Judge, Thrissur , after trial, as M.F.A. No. 954 of 2000 -:4:- per judgment and decree dated 24-2-2000 came to the conclusion that the plaintiffs have not been able to adduce satisfactory evidence to show that late Vareed had the capacity to understand the nature and effect of the dispossession and also to prove due execution of Ext.A3 Will. The suit was, accordingly, dismissed. It is the said judgment and decree which are assailed in this Appeal by the plaintiffs.
5. The learned counsel appearing for the contesting respondents, namely Defendants 1 to 5 raised a preliminary objection that since O.P. 88/1995 was filed long after the period of limitation prescribed under Art. 137 of the Limitation Act, the O.P. itself was hopelessly barred by limitation and liable to be dismissed as such and that, therefore, an examination of the case on the merits is unwarranted. Thereupon both sides were heard on the question of maintainability of O.P. 88/1995.
6. Adv. Sri. N.P. Samuel the learned counsel appearing for the appellants/plaintiffs made the following submissions M.F.A. No. 954 of 2000 -:5:- before me in support of the maintainability of the O.P.:-
No limitation has been prescribed for the filing of a petition for probate or Letters of Administration. In an application filed for grant of probate or Letters of Administration, no right is asserted or claimed by the applicant who only seeks recognition of the court to perform a duty. Probate or Letters of Administration issued by a competent court is conclusive proof of the legal character throughout the world. It will be a judgment in rem. The author of the testament has cast certain duties with regard to the administration of his estate after his death. The applicant for probate or Letters of Administration only seeks permission of the Court to perform those duties . That duty is only a moral and not a legal duty. There is no law which compels the applicant to file proceedings for probate or Letters of Administration within a prescribed period for the purpose of discharging the said moral duty. It is legitimate to conclude that an application for probate or Letters of Administration is not an M.F.A. No. 954 of 2000 -:6:- action in law. Therefore, the application for the grant of probate or Letters of Administration does not strictly fall within the meaning envisaged by Article 137 of the Limitation Act which has therefore, no application. Even in paragraph 17 of Kunvarjeet Singh v. Kirandeep Kaur - 2008 (2) KLT 296 (SC) and paragraph 8 of Krishna Kumar Sharma v. Rajesh Kumar Sharma - 2009 (2) KLT 149 (SC) the Apex Court has approved the proposition of law as laid down in Gnanamuthu Upadesi v. Vana Koilpillai Nadan - ILR 17 Madras 379, Ramanand Thakur v. Parmanand Thakur - AIR 1982 Patna 87, State of Punjab v. Vishwajit Singh and Others - AIR 1987 Punjab and Haryana 126 and In the matter of S. Krishnaswami - AIR 1991 Madras 214 . If so, the objection regarding the maintainability of O.P. 88 of 1995 is only to be overruled.
7. I am afraid that I cannot agree with the above submissions made on behalf of the appellants. It is true that in the paragraphs referred to by the learned counsel , the Apex M.F.A. No. 954 of 2000 -:7:- court had approved the legal position as enunciated in AIR 1991 Madras 214 (supra) and other related rulings. But then, it has been specifically laid down following the earlier decision of the Apex Court in Kerala State Electricity Board, Thiruvananthapuram v. T.P. Kunhaliumma - AIR 1977 SC 282 that Article 137 of the Limitation Act will apply to any petition or application filed before a Civil court not only under the C.P.C. but also under any other law and such application include those filed for the grant of probate or Letters of Administration.
8. The 2nd plaintiff examined as P.W.2 has admitted in more than one place that he came to know of Ext.A3 will executed by Vareed on the 9th day of registration of Ext.A3 Will and that it was he who took back the original Will from the Sub Registry Office . This statement by P.W2 is reinforced by the Registrar's endorsement on the reverse of the Will to the effect that the Will was taken back from the Sub Registry Office by the 2nd plaintiff on 26-5-1989. If so, O.P. 88 of 1995 filed on 22-3- M.F.A. No. 954 of 2000 -:8:- 1995 was hopelessly barred by limitation. Being an original proceedings, Sec. 5 of the Limitation Act cannot be pressed into service for condoning the delay in filing the O.P. In this view of the matter, I do not consider it necessary to go into the merits of the case. Accordingly, upholding the objection, I hold that O.P. 88 of 1995 which was subsequently converted into O.S. 3 of 1998 on the file of the District court, Thrissur was barred by limitation and was liable to be dismissed under Sec. 3 of the Limitation Act even if this objection regarding limitation was not raised before the court below. For this reason, I dismiss this Appeal preferred against the suit which was barred by limitation.
Dated this the 25th day of June, 2009.
Sd/-V. RAMKUMAR,
(JUDGE)
ani. /true copy/
V. RAMKUMAR, J.
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M.F.A. No. 954 of 2000
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Dated, this the 25th day of June, 2009
JUDGMENT