Gauhati High Court
Bhanvarilal Sharma vs Raj Kumar Sharma on 13 June, 2002
Equivalent citations: AIR2003GAU90, AIR 2003 GAUHATI 90
Author: H.K.K. Singh
Bench: H.K.K. Singh
ORDER H.K.K. Singh, J.
1. This is a statutory appeal under Section 299 of the Indian Succession Act, 1925 (herein after referred to as 'the Act') directed against the judgment and order dated 5-12-2001, passed by the District Judge, Shillong, in Test Case No. 1 (H) 2000, by which the petition of the present appellant herein for grant of probate of the Will was rejected.
2. One Shri Laduram Sharma, a Hindu had lived at Shillong and died at Shillong on 2-12-93. Before his death the said Laduram Sharma executed a Will on 3-11-93 thereby bequeathing some of his properties situate at Shillong and the petitioner was named as executor. On 24-5-2000, petitioner filed a petition for grant of probate. Objectors came and filed their objections taking the stand, inter alia, that the Will is a manufactured document and that the Will was not executed by the alleged testator and the learned District Judge passed the impugned judgment and order thereby rejecting the application for probate on three grounds. According to the District Judge, the Will was executed on 3-11-93 but the petition for probate has been filed only on 24-5-2000 thus it is barred by time. It was also held that the original Will was not produced before the Court. Lastly, the District Judge held that neither the petitioner examined himself nor produced any attesting witnesses before the Court.
3. I have heard Mr. P. K. Borah, learned counsel for the petitioner appellant herein and also Mr. N. D. Chullai, learned counsel for the objector respondent herein.
4. With regard to the question of limitation, I do not find any period of limitation prescribed by the Act for filing petition for grant of Probate except the provision contained under Section 293 of the Act which mandates that no Probate of a Will shall be granted until expiration of 7 (seven) clear days and in the course of hearing the learned counsel have not been able to produce any decision of the Supreme Court in which it has been held categorically by the Hon'ble Supreme Court that provision 137 of the Limitation Act will be applicable in case of a petition for grant of probate under the provisions of the Act. Though Shri Borah, has cited the decision of Punjab and Haryana High Court in the case of State of Punjab v. Vishwajit Singh and other reported in AIR 1987 P and H 126, wherein relying upon the earlier decisions of Calcutta High Court in the case of Kalinath Chatterjee v. Nagendra Nath Chatterjee, reported in AIR 1959 Cal 81 and also the decision of Patna High Court in the case of Ramanand Thakur, reported in AIR 1982 Pat 87, held that provisions of Article 137 of the Limitation Act is not applicable and there is no period of limitation for filing a petition for grant of a Probate. The reason for not applying the provisions of Article 137 as given in the aforesaid reported decisions of Punjab and Haryana, High Court. Calcutta High Court and Patna High Court, appears that application for Probate is in the nature of an application for permission to perform a duty created by a Will and the right to apply continues so long as the duty created by the Will for any part of the trust remains to be executed.
5. In this regard, we may refer to the judgments of the Supreme Court in the case of Kerala State Electricity Board, Trivandrum v. K.K. Amsom and Besom reported in AIR 1977 SC 282. Wherein, a Three Judges Bench of the Hon'ble Apex Court after considering various provisions of the Limitation Act, 1963, and comparing the same with the provisions contained in the Limitation Act, 1908, and also the changes brought in the long title by the Act 1963 overruling the earlier decision of the Supreme Court reported in AIR 1969 SC 1335 : 1969 Lab IC 1538, held at paragraph No. 18 as follows :--
"18. The alteration of the division as well as the change in the collocation of the words in Article 137 of the Limitation Act, 1963, compared with Article 181 of the 1908 Limitation Act shows 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 application as in the 1963 Limitation Act. The words "any other application" under Article 137 cannot be said on the principle of edjusdem 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 applicant or the appellant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application during such period."
6. The aforesaid decision in Kerala State Electricity Board case (supra) is in respect of the petition under Section 16 Clause 3 of the Telegraph Act, 1985. This decision on the said case of Kerala State Electricity Board (Supra) was followed by the Apex Court in its subsequent decisions viz. in the case of S. Rajan v. State of Kerala reported in AIR 1992 SC 1918, in which the Apex Court held that Article 137 of the Limitation Act is applicable in respect of application under Section 20 of the Arbitration Act (10 of 1940) for filing of the agreement and also in case of Union of India v. Momiri Construction Company reported in AIR 1995 SC 1927. And again, In the case of the Additional Special Land Acquisition Office, Bangalore v. Thakoredas Major reported in AIR 1994 SC 2227, it was held that an application by a claimant to Court for a direction to the Deputy Commissioner/Collector for making a reference under Section 18 of the Land Acquisition Act, 1984 should be made within 3 years from the date of expiry of 90 days, as provided under Article 137 of the Act.
7. In this regard, in the above referred decision of the Punjab and Haryana High Court, Calcutta High Court and Patna High Court, it appears that the decision of the Hon'ble Supreme Court reported in AIR 1977 SC 282 was not considered as some of the decisions were made such before the aforesaid decision of the Supreme Court reported in AIR 1977 SC 282 and some of the decisions are in respect of Article 181 of the Limitation Act (corresponding to Article 137 of the Limitation Act 1963). Now, in view of the sweeping decision of the Hon'ble Supreme Court in the case of Kerala State Electricity Board (supra), I am of the opinion that in the case of a petition for Probate the provisions of Article 137 of the Limitation Act 1963 will apply.
8. Question of Limitation is mixed question of law and fact. Regarding the period prescribed it is the question of law but regarding the starting point of Limitation, it is normally a question of fact which has got to be determined on the basis of facts. In the present case if Article 137 of the Limitation Act is applicable the time from which the period of limitation begins is when the right to apply accrues. In the present case it has been submitted by Mr. Borah that though it was not clearly indicated in the petition of Probate, as it is not required by Section 276 of the Act, the learned counsel submits that even in the Memo of Appeal it has been indicated that the petition has been filed by the petitioner well within three years of his knowledge of the existence of the Will. Anyway, I will not delve into the matter as it is a matter to be decided by the District Judge and also in view of the order that I am going to pass hereunder.
9. Regarding the second point that the original Will was not filed before the District Judge at the time of presentation of the petition for Probate or thereafter. Under the provisions of Sections 237, 238 and 239. Probate may be granted and also an application for Probate may be filed even without filing the original Will. Here, in the present case Mr. Borah has submitted that the Original Will was lying with the respondent herein at the time when the petition for probate was filed before the District Judge. In such a case, under Section 267 of the Act, the one who is in possession of the Will and other testamentary papers may be directed by the Court to produce the testamentary papers including the Will during the proceeding for grant of the Probate.
10. Again, at the third point, the District Judge has rejected the application on the ground that no evidence was laid by the petitioner but on perusal of the Lower Court's record I find that no specific order has been passed directing the petitioner or giving chance to the petitioner to adduce evidence. Thus when a chance has not been given to the petitioner for adducing evidence the petitioner cannot be blamed.
11. For the aforesaid above reasons and conclusions as made. I am of the opinion that the Probate proceeding should be considered afresh by the District Judge following the provisions of law and giving all opportunities to both, sides as permissible under law.
12. Accordingly, the impugned judgment and order dated 5-12-2001 is set aside and the case is remanded to the District Judge for hearing the matter afresh. The District Judge will grant opportunities to both sides even to make additional pleadings in support of their case.
13. Appeal -succeeds. Impugned Judgment and order set aside. The case is remanded. Considering the facts and circumstances of the case I make no order as to cost regarding the present proceeding here.