Calcutta High Court
The Hon'Ble Justice Sanjib Banerjee vs The Hon'Ble Justice Sabyasachi ... on 17 November, 2017
Author: Sanjib Banerjee
Bench: Sanjib Banerjee, Sabyasachi Bhattacharyya
OD-2
APO No.446 of 2017
In
PLA No.21 of 1988
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
IN THE GOODS OF :
KRISHNA MURARI MODI (DEC.)
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
And
The Hon'ble JUSTICE SABYASACHI BHATTACHARYYA
Date : 17th November, 2017.
Appearance:
Mr. P. Saha, Adv.
Mr. D. Dinda, Adv.
Mr. S. Sengupta, Adv.
Mr. Balarko Sen, Adv.
Mr. P. Maheswari, Adv.
The Court : The appeal is directed against an order of May 18, 2017 passed
in the absence of the principal respondent on a petition for revocation of the grant of
probate filed under Section 263 of the Succession Act, 1925.
The petition for revocation has been rejected on the ground of limitation. It was observed in course of the order impugned that on a reading of the petition "it appears that the incident alleged for which the petitioner is now seeking for revocation of leave has taken place long ago, apart from the fact that petition is hopelessly barred by limitation." Elsewhere, it has been said that the petition was lacking in particulars, 2 without indicating the nature of the particulars that ought to have been included in the petition.
The Limitation Act, 1963 does not prescribe any period of limitation for either a petition for grant of probate being filed or for a petition for revocation of probate being lodged. Even if the residuary article in the schedule to the Limitation Act pertaining to applications is brought into play, a petitioner seeking revocation may be said to not be entitled to pursue the remedy after a period of three years has elapsed from the date of knowledge of such petitioner of the grant of probate.
On a reading of the petition before the interlocutory Court, particularly paragraphs 18 and 19 thereof, it does not appear that the petitioner admitted that the petitioner was aware of the probate having been granted at a time prior to three years before applying for revocation. In short, the petition does not appear to be ex face barred by limitation.
Limitation is a mixed question of fact and law. A petition can be dismissed in limine if it appears on the face of it to be barred by limitation. However, if the petition does not itself reveal that it is barred by limitation, the petition cannot be dismissed in limine; though a respondent may demonstrate grounds by filing an affidavit to show that the cause of action of the petitioner had accrued long back and that the cause could no longer be pursued.
The respondent is represented and the respondent asserts that the appellant herein had knowledge of the grant of probate at least in 2007. Since such fact is not evident from the petition carried by the appellant to the interlocutory Court, the petition for revocation of grant could not have been rejected on such ground.
Accordingly, APO No.446 of 2017 is allowed by setting aside the order dated May 18, 2017 and restoring GA No.1702 of 2017 before the interlocutory Court. 3 The respondent will be free to urge whatever grounds may be available to him, including the point of limitation, in course of the revocation proceedings in the interlocutory Court.
There will be no order as to costs.
(SANJIB BANERJEE, J.) (SABYASACHI BHATTACHARYYA, J.) bp.