Case: Sameer Kapoor and Ors Vs. The State and Ors

2. The brief facts leading to this appeal are, that one Smt. Kailash Kapoor, a permanent resident of England, executed a will dated 16.05.1990 bequeathing thereunder all her assets to two of her grand-children. That the said Smt. Kailash Kapoor died in England on 10.09.2001. According to the appellants, they acted upon the said will and disposed of all the immovable properties of the aforesaid testatrix, possessed in India between 6.9.2000 to March, 2001. That after the death of late Smt. Kailash Kapoor, the High Court of Justice, District Probate Registry of Birmingham, England and Wales issued a probate in respect of the said will vide order dated 21.11.1997. It appears that thereafter in the year 2001, respondent no.2 herein, at whose instance the will was probated in England, applied for letters of administration for property situated in Delhi by filing a Testamentary Case under Section 228 of the Indian Succession Act (hereinafter referred to as the Act) being Testamentary Case No. 15 of 20012.1 That the appellant herein filed I.A. No. 13895 of 2006 before the learned Single Judge of the High Court, praying to reject the plaint under Order VII Rule 11 of the CPC on the ground that the said Testamentary Case under Section 228 of the Act, considering Article 137 of the Limitation Act, 1963, is barred by the law of limitation. It was the case on behalf of the appellants that though no limitation would apply seeking grant of probate so long as a person has not approached the court and will is probated, however, once the court at England and Wales had been approached and a probate had been granted, no petition for letters of administration could have been filed after a lapse of a period of three years. The said application was opposed by respondent no.2 herein – the original applicant. It was submitted that Article 137 of the Limitation Act would not apply3. The learned Single Judge vide order dated 24.09.2008 dismissed the said application and refused to reject the plaint under Order VII Rule 11 of the CPC by observing that Section 228 of the Act is akin to provisions of Section 222 and 276 of the Act and, therefore, when there is no period of limitation prescribed for submitting an application under Section 222 and/or Section 276 of the Act, for submitting an application under Section 228 of the Act, the period of limitation shall not be applicable. Therefore, the learned Single Judge was of the opinion that Article 137 of the Limitation Act shall have no application4. Feeling aggrieved and dissatisfied with the order passed by the learned Single Judge rejecting the application to reject the plaint under Order VII Rule 11 of the CPC, the appellants herein approached the Division Bench of the High Court by way of F.A.O(OS) No. 11 of 2009. By the impugned judgment and order, the Division Bench of the High Court has dismissed the said appeal and has confirmed the order passed by the learned Single Judge rejecting the application under Order VII Rule 11 of the CPC5. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the High Court, the appellants – applicants¬ original defendants have preferred the present appeal.

Reasoning:
10. Now so far as the first question is concerned, the same is now not res integra in view of the direct decision of this Court in the case of Kunvarjeet Singh Khandpur (supra) and in the case of Krishan Kumar Sharma v. Rajesh Kumar Sharma reported in (2009) 11 SCC 537.   In both the aforesaid decisions, this Court has specifically observed and held that Article 137 of the Limitation Act shall be applicable to the petitions for grant of probate or letters of administration also. Therefore, question no.1 is answered in the affirmative and it is observed and held that Article 137 of the Limitation Act, 1963 shall be applicable to the applications for grant of probate or letters of administration11. Now so far as question no.2 is concerned, it is the specific case on behalf of the appellants that the application submitted by respondent No.2 for letters of administration under Section 228 of the Act is barred by the law of limitation as provided under Article 137 of the Limitation Act. As observed and held hereinabove, Article 137 of the Limitation Act shall be applicable to the application for grant of probate or letters of administration submitted under Section 276 of the Act. Similarly, even the application under Section 228 of the Act shall also be covered by Article 137 of the Limitation Act. Therefore, it is observed and held that Article 137 of the Limitation Act shall be applicable to the applications under Section 228 of the Act also12.1 As per Article 137 of the Limitation Act, the period of limitation prescribed is three years and the three years begin to run when the right to apply accrues. The crucial expression under Article 137 of the Limitation Act is right to apply. It is the case on behalf of the appellants that in the present case the right to apply for letters of administration had accrued in the year 1997, more particularly on 21.11.1997 when the High Court of Justice, District Probate Registry, Birmingham (UK) passed an order for grant of probate of will dated 16.05.1990 in favour of respondent no.2. It is the case on behalf of the appellants that therefore right to apply under Section 228 of the Act had accrued in favour of respondent no.2 on 21.11.1997 and, therefore, respondent no.2 was required to submit an application for letters of administration within a period of three years from 21.11.1997. However, the application for letters of administration has been submitted on 28.02.2001, i.e., after a lapse of limitation of three years as prescribed under Article 137 of the Limitation Act and therefore Probate Case No. 15/2001 is clearly barred by law of limitation and, therefore, the same was required to be rejected in exercise of powers under Order VII Rule 11 of the CPC. It is also the case on behalf of the appellants that so long as the will is not probated, the period of limitation would not start running. However, once the will is probated, in that case, the period of limitation as provided under Article 137 of the Limitation Act would begin to run from the date on which the will is probated14.1 When an application under Section 276 of the Act is submitted for probate or for letters of administration with will, if any objection is raised by any body with respect to execution of the will, in that case, the applicant is required to prove the will and thereafter the will shall be probated and the court may pass an order for letters of administration. However, in a case where a will has been proved or deposited in a court of competent jurisdiction situated beyond the limits of the State, whether within or beyond the limits of India, in that case, as provided under Section 228 of the Act, when a properly authenticated copy of the will is produced, the letters of administration may be granted in favour of such person. Meaning thereby, in such a situation, the will is not required to be proved again and it shall be conclusive. Therefore, Section 228 of the Act shall be an enabling provision and it confers an additional right to apply for letters of administration on the basis of such authenticated copy of the will. Therefore, as rightly observed by the learned Single Judge and the Division Bench that Section 228 is akin to Section 276 of the Act16.1 This Court approved the observations made in paragraph 17 by the Madras High Court in the case of S. Krishnaswami (supra) insofar as the nature of the petition for grant of probate or letter of administration is concerned. However, this Court did not agree with the finding that the application for grant of probate or letters of administration is not covered by Article 137 of the Limitation ActThis Court did not agree with/approve conclusion (b). However, approved conclusion (c), reproduced hereinabove17. Therefore, considering the law laid down by this Court in the case of Kunvarjeet Singh Khandpur (supra), it can be said that 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 letters of administration issued by a competent court is conclusive proof of the legal character throughout the world. That the proceedings filed for grant of probate or letters of administration is not an action in law but it is an action in rem. As held by this Court in the case of Kunvarjeet Singh Khandpur (supra), an application for grant of probate or letters of administration is for the courts 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 executedTherefore, even if the will is probated by any court mentioned in Section 228 of the Act, right to get the letters of administration is a continuous right which can be exercised any time, 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 executed18. Applying the law laid down by this Court in the aforesaid decision and the observations made hereinabove, the submission on behalf of the appellants that Probate Case No. 15/2001 filed by respondent no.2 for letters of administration under Section 228 of the Act, read with Section 276 of the Act is barred by law of limitation, cannot be accepted. At this stage, it is required to be noted that even in the plaint, it is specifically pleaded that after passing away of the father of the parties in the year 2000, the appellants started intermeddling with properties bequeathed to respondent no.2, which were situated in Delhi and, therefore, left with no option, he was compelled to apply for letters of administration. Therefore, even as per the pleadings in the application, the cause of action started from the date on which the appellants started intermeddling with the properties bequeathed to respondent no.2, after passing away of the father of the parties in the year 2000. Therefore, in the facts and circumstances of the case, both the learned Single Judge and the Division Bench have rightly refused to reject the application in exercise of powers under Order VII Rule 11 of the CPC. In the facts and circumstances of the case and as observed hereinabove, it cannot be said that the application for letters of administration was clearly barred by the law of limitation which was required to be rejected in exercise of powers under Order VII rule 11(d) of the CPC. We are in complete agreement with the view taken by the High Court.