Shanti Swaroop Deceased And ... vs Onkar Prasad Deceased And Others
2023 Latest Caselaw 12670 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
RESERVED ON 21.02.2023
 
DELIVERED ON 25.04.2023
 
Court No. - 39
 

 
Case :- SECOND APPEAL No. - 795 of 2011
 

 
Appellant :- Shanti Swaroop Deceased And Others
 
Respondent :- Onkar Prasad Deceased And Others
 
Counsel for Appellant :- Vinod Sinha,Arun Kumar Sharma,Mahesh Sharma,Pradeep Kumar Rai
 
Counsel for Respondent :- Sanjai Kr. Dubey,Pramod Kumar Dwivedi,Sanjay Kumar Dubey
 

 
Hon'ble Salil Kumar Rai,J.

This is a plaintiff's second appeal challenging the judgment and decree dated 20.11.1979 passed by the II- Additional Munsif, Hathras, i.e., the Trial Court dismissing Original Suit No. 13 of 1978 as well as against the judgment and decree dated 6.9.2011 passed by the District Judge, Hathras, i.e., the lower appellate court dismissing Civil Appeal No. 23 of 1980 filed against the decree of the trial court.

The facts relevant for the present Second Appeal are that Brij Lal, who was the common ancestor of the plaintiff and the defendants, was recorded as Bhumidhar of Plot No. 174-Aa (area 24-6-10) which shall hereinafter in short be referred as ''the suit property'. Brij Lal had four sons, namely, Nandan Lal, Babu Lal, Shanti Swaroop (plaintiff) and Onkar (defendant / respondent no.1). It is the common case of the parties that Nandan Lal renounced the world and his whereabouts were not known and Babu Lal died issueless before Brij Lal. Omkar, i.e., defendant no. 1 had five sons, namely, Kamlesh, Hridesh, Janki Prasad, Bhagwati Prasad and Lalta Prasad who are respondent nos. 2 to 6 in the present appeal and were defendant nos. 2 to 6 in the trial court. The defendants claim that Brij Lal executed a registered Will dated 05.08.1972 bequeathing all his movable and immovable properties, including the suit property, to defendants/respondent nos. 2 to 6. Hoti Lal Shrama and Shobha Ram were the attesting witnesses of the aforesaid Will. Brij Lal died on 05.11.1976. After the death of Brij Lal, the defendant nos. 2 to 6 got their names mutated in the revenue records on the basis of the Will dated 05.11.1976. The plaintiff instituted Original Suit No. 13 of 1978 praying for cancellation of Will dated 05.08.1972 pleading that the Will was a forged document and thus void. Alternatively, the plaintiff also pleaded that the suit property was ancestral property and had devolved on Brij Lal from his father and, therefore, under the U.P. Tenancy Act, 1939 the plaintiff and defendant no. 1 were co-tenants of the suit property along with Brij Lal and remained co-tenants under the U.P. Zamindari Abolition and Land Reforms Act, 1950 and, therefore, the plaintiff had 1/3 share in the suit property and the Will regarding his 1/3 share in the suit property was void. The case of the plaintiff is that he came to know about the Will from the Gram Pradhan of the village only six months before the institution of the suit and the suit was within limitation as the cause of action for filing the suit arose when the plaintiff came to know about the Will i.e., six months before the date of filing the suit. The suit was registered in the trial court on 04.01.1978.

The defendants filed their written statement denying the averments made in the plaint and stated that the Will was executed by Brij Lal out of his free will and volition and that Brij Lal was the sole tenant of the suit property. In their written statement, the defendants admitted that Brij Lal had died on 05.11.1976 but denied the averments made regarding the date on which the cause of action for filing the suit arose and stated that the plaintiff knew about the execution of the Will even before the death of Brij Lal. On the aforesaid pleadings, the defendants pleaded that the suit was liable to be dismissed on merits as well as on the ground that it was barred by limitation.

The issues framed by the trial court and relevant for the present second appeal are as to whether the Will was a forged document and was not executed by Brij Lal, whether Brij Lal was the sole tenant of the suit property and had the right to execute the Will dated 05.08.1972 and the relief to which the plaintiffs were entitled? It is relevant to note that no issue regarding limitation was framed by the trial court in Original Suit No. 13 of 1978.

The trial court vide its judgment and decree dated 20.11.1979 dismissed Original Suit No. 13 of 1978. The trial court after holding that Brij Lal was the sole tenant of the suit property and after considering the testimony of Shobha Ram, the attesting witness of the Will and the fact that the Will was a registered document, held that the plaintiff had failed to prove that the Will was a forged document. The trial court held that the plaintiff knew about the execution of the Will from before the date stated by the plaintiff in his plaint and as the suit was not filed within three years from the date the plaintiff came to know about the Will, the suit was barred by Article 59 of the Limitation Act, 1963. Consequently, the trial court held that the plaintiff was not entitled to any relief.

Aggrieved, the plaintiff filed Civil Appeal No. 23 of 1980 which was allowed by the lower appellate court vide its judgment and decree dated 21.09.1983. The lower appellate court held that the plaintiff had 1/3 share in the suit property as he was a co-tenant of the same along with Brij Lal and defendant no. 1. In its judgment dated 21.09.1983, the lower appellate court after noticing the fact that the original Will had not been filed in the trial court till the date Shobha Ram, the attesting witness, testified to the execution of the Will, held that the testimony of Shobha Ram cannot be considered to decide the issue regarding the due execution of the Will and, therefore, the due execution of the Will dated 05.08.1972 was not proved. Consequently, the lower appellate court allowed Civil Appeal No. 23 of 1980, set-aside the judgment and decree of the trial court, decreed Original Suit No. 13 of 1978 and cancelled the Will dated 05.08.1972.

Aggrieved by the judgment and decree passed by the lower appellate court, the defendants filed Second Appeal No. 2281 of 1983 under Section 100 of the Code of Civil Procedure which was dismissed by this Court vide its judgment and order dated 06.02.2006.

At this stage, it would be relevant to note that the findings of the trial court that the suit was barred by Article 59 of the Limitation Act was not specifically reversed either by the lower appellate court or by this Court in Second Appeal No. 2281 of 1983.

Aggrieved by the judgment and order dated 06.02.2006 passed by this Court dismissing Second Appeal No. 2281 of 1983, the defendants filed Special Leave Petition (Civil) No. 10058 of 2006 before the Supreme Court which was subsequently registered as Civil Appeal No. 2815 of 2008. The aforesaid civil appeal was allowed by the Supreme Court vide its judgment and order dated 16.04.2008 and the case was remanded back to the first appellate court to pass orders on the issue as to whether Original Suit No. 13 of 1978 was barred by time. In its order dated 16.04.2008, the Supreme Court held that because the trial court had dismissed the suit also on grounds of limitation and the said findings had not been reversed by the first and the second appellate court, therefore, the suit continued to remain time-barred. In its order dated 16.4.2008, the Supreme Court further directed that if the question of limitation was decided in favour of plaintiff, the other findings recorded by the lower appellate court in its judgment dated 21.09.1983 shall stand and shall not be disturbed. The relevant portion of the order dated 16.4.2008 passed by the Supreme Court is reproduced below : -

"22. The reasoning behind the said proposition is that certain questions relating to the jurisdiction of a Court, including limitation, goes to the very root of the Court's jurisdiction to entertain and decide a matter, as otherwise, the decision rendered without jurisdiction will be a nullity. However, we are not required to elaborate on the said proposition, inasmuch as, in the instant case such a plea had been raised and decided by the Trial Court but was not reversed by the First Appellate Court or the High Court while reversing the decision of the Trial Court on the issues framed in the suit. We, therefore, have no hesitation in setting aside the judgment and decree of the High Court and to remand the suit to the First Appellate Court to decide the limited question as to whether the suit was barred by limitation as found by the Trial Court. Needless to say, if the suit is found to be so barred, the appeal is to be dismissed. If the suit is not found to be time-barred, the decision of the First Appellate Court on the other issues shall not be disturbed."

(Emphasis added)

After remand by the Supreme Court, Civil Appeal No. 23 of 1980 was restored to its original number before the lower appellate court and the lower appellate court vide its judgment and order dated 06.09.2011 dismissed Civil Appeal No. 23 of 1980 holding that Original Suit No. 13 of 1978 was barred by time. The lower appellate court, relying on the testimony of defendant no. 1, rejected the plea of the plaintiff that he came to know about the Will six months before the institution of the suit and held that the plaintiff came to know about the Will 3 to 4 days after its execution when the testator, i.e., Brij Lal told him about the Will and as the suit was filed three years after the plaintiff came to know about the Will, the suit was barred by limitation.

Hence, the present second appeal.

The appeal was heard as fresh case on 26.09.2011 on which date this Court observed that the only question involved in the present appeal was as to from which date the limitation for filing the suit would run, i.e., whether from the date of the execution of the Will or the date of the knowledge of the Will or the date of the death of the executant. However, the appeal was not admitted for hearing on the aforesaid date. On 21.11.2022, this Court observed that ends of justice would be served if the appeal was decided finally at the admission stage itself by framing substantial question of law on the next date fixed. On 21.02.2023, when the appeal was called out for hearing, this Court observed that the substantial question involved in the present appeal was evident from the observations of the Court in its order dated 26.09.2011 and with the consent of the counsel for the parties, proceeded to frame the substantial question on 21.02.2023 and heard the appeal on the substantial question of law on the same date. The appeal was admitted on 21.2.2023 itself and the following substantial question of law was framed :-

"Whether Original Suit No. 13 of 1978 for cancellation of Will dated 05.08.1972 was barred by limitation in light of Article 59 of the Limitation Act, 1963?"

The parties had notice of the substantial question of law on which the appeal was to be argued and the case was heard on the aforesaid substantial question of law on the same date.

It was argued by the counsel for the appellant that by virtue of Article 113 of the Limitation Act, 1963, the limitation to file a suit for cancellation of Will starts to run from the date on which the right to sue accrues and the right to sue for cancellation of Will will accrue only on the death of the testator. It was argued that Article 59 of the Limitation Act does not apply on suits for cancellation of Will and the courts below have wrongly held the suit to be barred by limitation because of Article 59 of the Limitation Act, 1963. It was argued that admittedly Brij Lal died on 5.11.1976 and the suit was filed within three years from the date of death of the testator, therefore, the suit was within limitation. In support of his contention, the counsel for the appellant has relied on the judgment of the Supreme Court reported in Vundavalli Ratna Manikyam and Anr. vs. V.P.P.R.N. Prasada Rao 2020 (3) SCC 289.

Rebutting the argument of the counsel for the appellant, the counsel for the respondents / defendants has argued that the Will was a registered document and, therefore, by virtue of Section 47 of the Registration Act, 1908 it would operate from the date of its execution, i.e., 05.08.1972. It was argued that from the evidence on record, it was apparent that the plaintiff came to know of the Will immediately after its execution. It was argued that by virtue of Article 59 of the Limitation Act, 1963, the suit for cancellation of Will had to be filed within three years from the date when the facts entitling the plaintiff to have the Will cancelled first became known to him and as the suit was filed after three years from the date the plaintiff came to know about the Will, the suit was beyond time and was rightly dismissed as barred by limitation. It was further argued that in his plaint instituting Original Suit No. 13 of 1978, the plaintiff had pleaded that the cause of action for filing the suit arose six months before the filing of the suit, i.e., on the date when he came to know about the execution of the Will from the Gram Pradhan of the village and, therefore, in the present case, the plaintiff - appellant cannot plead any other ground to argue that the suit was not barred by limitation and the cause of action for filing the suit accrued on the death of the testator. It was argued that for the aforesaid reasons, the substantial question of law has to be answered in favour of the defendants and against the plaintiff. In support of his contention, the counsel for the defendants - respondents has relied on the judgments of the Supreme Court in Janki Vashdeo Bhojwani & Anr. vs. Indusind Bank Ltd. & Ors. (AIR 2005 SC 439); Bondar Singh & Ors. vs. Nihal Singh & Ors. 2003 (4) SCC 161; Shri D.M. Deshpande & Ors. vs. Shri Janardhan Kashinath Kadam 1998 (8) SC 39; Rajasthan State TPT Corpn. and Anr. vs. Bajrang Lal (2014) AIR SCW 2058 and Thakur Kishan Singh (dead) vs. Arvind Kumar AIR (1995) Supreme Court 73.

I have considered the submission of the counsel for the parties and also perused the lower court records.

The Will was executed by Brij Lal on 05.08.1972 and the records indicate that the will was registered on 08.08.1972. Brij Lal died on 05.11.1976. Original Suit No. 13 of 1978 filed for cancellation of the aforesaid Will was registered on 04.01.1978. The aforesaid facts are admitted between the parties. The plaintiff in his plaint claimed that he came to know about the Will six months before the institution of suit. The said averment of the plaintiff is denied by the defendants. The courts below have also not accepted the plea of the plaintiff regarding the date when he came to know about the Will and the first appellate court has held that the plaintiff came to know about the Will four to five days after its execution when Brij Lal himself informed the plaintiff about the Will. The said findings have been recorded by the court below relying on the testimony of defendant no. 1 and are findings of fact based on evidence on record and there is no perversity in the aforesaid findings. In view of the aforesaid, I proceed to decide the case on the findings of the lower appellate court that plaintiff got knowledge of the Will before the death of Brij Lal and immediately after its execution when Brij Lal told him about the Will.

Section 2 (h) of the Indian Succession Act, 1925 defines ''Will' as the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. It is apparent from the definition of a Will that Will is merely a declaration of the intention of the testator. The desire of the testator in respect of his property comes into effect after his death. Will by its very nature is revocable and can be revoked by the testator any time before his death. The Will does not affect the properties included in the Will during the life time of the testator and no title in the properties passes to the beneficiaries of the Will during the life time of the testator. In other words, the distribution of property as specified in the Will does not operate in praesenti but comes in operation in future, on the death of the testator.

In Mathai Samuel & Ors. vs. Eapen Eapen (dead) by Lrs. & Ors. AIR (2013) SC 532, the Supreme Court observed that, ''the essential quality of a testamentary disposition is ambulatoriness of revocability during the executants' lifetime and such a document is dependent upon executants' death for its vigour and effect. The aforesaid characteristics of a testamentary disposition distinguishes it from gift / settlement of property which is transfer of existing property made voluntarily and without consideration by one person called the donor to another called the donee and accepted by or on behalf of the donee. It was observed by the Supreme Court that in case of a Will, the crucial circumstance is the existence of a provision disposing of or distributing the property of the testator to take effect on his death, while on the other hand, in case of gift, the provision becomes operative immediately and a transfer in praesenti is intended and comes into effect. It was further observed that in case of Will, no interest is intended to pass during the lifetime of the owner of the property and mere registration of Will will not render the document a settlement. In other words, a mere registration of Will will not make the disposition of property as stipulated in the Will to come into effect in praesenti, i.e., immediately on the execution of the Will and during the lifetime of the testator.

Previously, in Hubert P. James vs. Gulam Hussain Pakseem AIR (1949) Privy Council 151, the Privy Council observed that Will had no legal effect whatsoever during the lifetime of the testator and no legal right can be supported on the Will of a living person. The observations of the Privy Council in paragraph nos. 15 and 16 of the judgment in Hubert P. James (supra) are reproduced below : -

"15. It is strange that none of the three Judges who dealt with this case in India, and none of the counsel engaged on behalf of the appellant, nor the counsel who signed the appellant's case before the Board seem to have considered that the Court was doing anything unusual in acting upon the will of a living person, a will, too, which had been revoked before the commencement of the suit. The document was throughout referred to as a will and apparently regarded as entitled to the same degree of solemnity and importance as would have attached to it had it been in truth a will, that is the will of a deceased person. A will takes effect on the death of the executant and during his lifetime is an ambulatory document, revocable at any moment, having no legal effect whatsoever. It is a secret and confidential document which the executant is never ordered to produce. In India, where a will may be deposited with the Registrar under the Indian Registration Act, the terms of the Act ensure that the contents remain secret until the death of the executant.

16. Apart from this case their Lordships know of no case, and the industry of counsel has produced none, in which any Court has founded or supported a legal right on the will of a living person. However the appellant, who might have destroyed his will after revoking it and have resisted, successfully their Lordships think, any attempt to make him disclose its contents, adopted neither of these courses. He allowed the document to be put in evidence without objection. In these circumstances, their Lordships, without expressing any opinion upon the wider question whether the will of a living person can ever be relevant to support a legal claim, will deal with the argument of the respondent on the assumption that the admission contained in the document was proved. The respondent argues that here is a piece of paper containing, over the signature of the appellant, an admission of a fact, and such admission can be proved and acted upon although the document in which it is contained may not have the legal effect which it was intended to have. Assuming the admission to be proved, its scope must be determined not only, as with all written admissions, with reference to the whole document in which it appears, but also in the light of the fact that document was not intended to take effect until the death of the person making the admission. The admission relied on in this case is not specific as to the date or terms of the partnership, or the circumstances in which it was entered into; it merely admits that the relation of partnership had been formed during the lifetime of the testator. Their Lordships think that the admission goes no further than to admit that on the death of the appellant the respondent was to be treated as his partner, and the estate was to be distributed on that basis unless the will was revoked. In their Lordships' view there is no justification for treating clause 4 of the will as admitting the existence of a partnership effective before the death of the testator with all the consequences which would flow from such a relationship. In their Lordships' view therefore the will of the appellant has no bearing upon his relationship with the respondent."

(Emphasis added)

The Will of a living person does not invade the rights of any person and does not create any interest in favour of any person in respect of the properties included in the Will. Because the Will of a living person has no legal effect, there is no requirement to get the same cancelled during the lifetime of the testator. The right to impeach any instrument accrues only when it becomes operative in law. In Badri vs. Niadar and Umrao Kunwar & Anr. (1915) XXXVII ILR 422 (Allahabad Series) the issue was whether a reversioner had the right to file a suit for a declaration that the Will in question was void and ineffectual as against his interest on the mere execution of the Will. The Division Bench of this Court held that mere execution of the Will does not afford a cause of action for a declaratory suit on the part of nearest reversioner that the Will was void and ineffectual as against his interest. The observations of the Division Bench of this Court in Umrao Kunwar (supra) are reproduced herein below:-

"1. This was a suit by a plaintiff claiming to be the next reversioner under the Hindu Law to the estate of one Dewa. The said Dewa died leaving a widow, Umrao Kuar. This lady has executed a will bequeathing the property in her hands as widow of Dewa to one Tika Ram, son of Niadar, brother of the said Dewa. In the will there is a recital to the effect that the bequest is made in accordance with oral directions given by Dewa. The plaintiff sought a declaration that the will in question is void and ineffectual as against his interest, and that Tika Ram, who was impleaded as defendant No. 2, will acquire no rights under the said will. The court of first instance dismissed the suit upon a preliminary point, holding that there had been no alienation by Umrao Kuar of the property in her hands, and that under the circumstances the mere execution of a will would not afford a sufficient reason for granting a declaratory decree It supported itself by a quotation from Mulla's Principles of Hindu Law. The learned District Judge on appeal has reversed the finding on the preliminary point and remanded the case for trial on the merits. He bases his decision upon the reported case of Jaipal Kunwar v. Indar Bahadur Singh (1904) I.L.R. 26 All. 238. It is obvious that in that case their Lordships of the Privy Council maintained the decision of the courts in India with considerable reluctance, and carefully guarded themselves against being understood to hold that the execution of a will under such circumstances as the present would afford a cause of action for a declaratory suit on the part of the nearest reversioner. It is certainly not the practice of this Court to encourage such suits, vide Ram Bhajan and Ors. v. Gurcharan (1904) 1 A.L.J.R. 468. The learned District Judge moreover, while purporting to follow the Privy Council ruling quoted by him, has really departed from the spirit of that ruling by interfering with the decision of the court of first instance. We think that the learned Additional Subordinate Judge was right in refusing to grant the declaration sought by the plaintiff and gave good reason for his decision. We set aside the order of the court below and restore the decree of the court of first instance dismissing the suit. The defendants-appellants will get their costs in this Court and in the lower appellate court."

(Emphasis added)

It was observed by the Privy Council in Mst. Bolo vs. Mst. Koklan AIR (1930) Privy Council 270 that there can be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least clear or unequivocal threat to infringe that right by the defendant against whom the suit is instituted. The said principle was followed by the Privy Council in Annamalai Chettiar vs. A.M.K.C.T. Muthukaruppan Chettiar AIR (1931) Privy Council 9 and subsequently by the Supreme Court in Mst. Rukhmabai vs. Lala Laxminarayan AIR (1960) Supreme Court 335. In Mst. Rukhmabai (supra), the Supreme Court after referring to the observations of the Privy Council in Mst. Bolo (supra) and while considering Article 120 of the Limitation Act, which corresponds to Article 113 of Limitation Act, 1963, observed that the right to sue under Article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. It was further observed that every threat by a party to such a right, however, ineffective and innocuous it may be, cannot be considered to be clear and unequivocal threat so as to compel him to file a suit. The Supreme Court observed as to whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right.

The observations of the Supreme Court in paragraph nos. 31, 32 and 33 in Mst. Rukhmabai (supra) are reproduced here in below:-

"31. The argument on the question of limitation is put thus: The plaintiff, respondent herein, had knowledge of the fraudulent character of the trust deed as early as 1917 or, at any rate, during the pendency of the partition suit between Rukhmabai and Chandanlal instituted in the year 1929, and the suit filed in 1940, admittedly after six years of the said knowledge, would be barred under Art. 120 of the Limitation Act. Article 120 of the Limitation Act reads :

Description of suit

Period of limitation

Time from which period begins to run.

120. Suit for which no period of Limitation is provided elsewhere in this Schedule.

Six years

When the right to sue accrues.

This Article was subject to judicial scrutiny both by the Judicial Committee as well as by the High Courts of various States. The leading decision on the subject is that of the Judicial Committee in Mt. Bolo v. Mt. Koklan, 57 Ind App 325 at p. 331: (AIR 1930 PC 270 at p. 272). Therein, Sir Benod Mitter observed:

"There can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted."

32. The said principle was restated and followed by the Judicial Committee in Annamalai Chettiar v. Muthukaruppan Chettiar, ILR 8 Rang 645: (AIR 1931 PC 9), and in Gobinda Narayan Singh v. Sham Lal Singh, 58 Ind App 125: (AIR 1931 PC 89). The further question is, if there are successive invasions or denials of a right, when it can be held that a person's right has been clearly and unequivocally threatened so as to compel him to institute a suit to establish that right. In Pothukutchi Appa Rao v. Secy. of State, AIR 1938 Mad 193 at p. 198, a Division Bench of the Madras High Court had to consider the said question. In that case, Venkatasubba Rao, J., after considering the relevant decisions, expressed his view thus:

"There is nothing in law which says that the moment a person's right is denied, he is bound at his peril to bring a suit for declaration. The Government beyond passing the order did nothing to disturb the plaintiff's possession. It would be most unreasonable to hold that a bare repudiation of a person's title, without even an overt act, would make it incumbent on him to bring a declaratory suit."

He adds at p. 199:

"It is a more difficult question, what is the extent of the injury or infringement that gives rise to, what may be termed, a compulsory cause of action?"

33. The legal position may be briefly stated thus: The right to sue under Art. 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said, right."

(Emphasis added)

In Meda Bibi vs. Imaman Bibi & Ors. 1884 (6) ILR 207 (Allahabad Series) (Full Bench), the issue before the Full Bench of this Court was as to whether the limitation for filing a suit for cancellation of gift would start running from the date the gift had been executed though possession had not been delivered by the donor to the donee or the right to impinge the gift would accrue after it became operative in law, i.e., after possession of the same was delivered to the donor. In Meda Bibi (supra), the donor remained in possession till his death and, therefore, possession of the property was delivered to the donee after the death of the donor. The Full Bench held that before holding the suit to be barred by limitation, it had to be seen as to whether the alleged gift ever took effect in law during the lifetime of the donor so as to afford the plaintiff a complete cause of action on which to come into court. It was held by the Full Bench of this Court that the right to challenge the gift accrued in favour of the plaintiff only when after receipt of possession by the donee, the gift became operative in law. The observations of the Full Bench of this Court are reproduced below:-

"It appears to us that the Judge has allowed the plea of limitation without first sufficiently ascertaining the facts material to its determination.

It was essential for him, before holding the suit barred, to find in terms whether the alleged gift by Ghulam Ghaus ever took effect in law during his lifetime, so as to afford the plaintiff a complete cause of action on which to come into Court. Her case is that Ghulam Ghaus remained in possession of the whole of the property covered by that instrument until his death, and that no possession of it, as required by the Muhammadan Law to render the transaction legal and binding, was ever obtained by the donee as long as he remained living. It does not necessarily follow that because the alleged deed-of- gift was on a particular date, that time at once began to run against the plaintiff under art. 91 of the Limitation Act. Her title to impeach it could only accrue from the moment when, by receipt of possession, it had become operative in law. As in this view of the matter the Judge has not only disposed of the suit on a preliminary point, but determined that point upon inadequate materials, we have no alternative but to allow this appeal, and remanding the case to him under s. 562 of the Code, we direct him to restore it to his file of pending appeals and dispose of it according to law. The costs of the appeal to this Court will be costs in the cause."

(Emphasis added)

As noted earlier, the Will of a living person does not infringe the rights of any person and does not create any legal interest in favour of any person. Thus, no right to sue for cancellation of the Will accrues in any person during the lifetime of the testator. Will can be challenged by a person against whom the Will operates after the death of the testator and in the said case, the Will would be defended by the beneficiaries of the Will who obviously would be defendants in the suit. A reading of the judgments of the Privy Council and the Supreme Court shows that the cause of action for instituting a suit for cancellation of Will would not arise before the death of the testator. The cause of action for cancelling an instrument would be complete only when the instrument affects the rights of the parties to possession or title. A beneficiary of a Will can assert his right in respect of the properties included in the Will and on the basis of the Will only after the death of the testator and it is only then that the beneficiary would either invade or threaten to invade the right of the plaintiff in respect of the properties included in the Will.

Article 59 of the Limitation Act is not applicable in cases of testamentary disposition and it is Article 113 which is applicable in such cases. Article 59 and 113 of Act of Limitation Act are reproduced herein below:-

Description of suit

Period of limitation

Time from which period begins to run.

59. To cancel or set aside an instrument or decree of for the rescission of a contract.

Three years

When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him.

Description of suit

Period of limitation

Time from which period begins to run.

113. Any suit for which no period of limitation is provided elsewhere in this Schedule.

Three years

When the right to sue accrues.

The right to sue, as held earlier, accrues in favour of plaintiff only after the death of the testator and, therefore, Article 113 applies in cases of Will. The knowledge of the execution of the Will before the death of the testator is not relevant to decide as to whether the suit for cancellation of Will was instituted within the limitation prescribed by the statute. At this stage, it would be relevant to refer to the observations of the Privy Council in Ibad Ali vs. Sajid Ali & Ors. 1895 ILR 23 P.C. 1 in which it was observed that Article 91 of the Schedule 2 of the Limitation Act, 1877 which corresponds to Article 59 of the present Limitation Act, 1963 did not have any application in case of a Will. The observations of the Privy Council in paragraph 9 of the aforesaid judgment are reproduced herein below:-

"9. Upon the hearing of this appeal the appellants' counsel were, in the opinion of their Lordships, well advised in not pressing the plea in bar of action which was suggested for the first time by the District Judge. Article 91 of Schedule II of the Limitation Act 1877 does not appear to their Lordships to have any application to the case of a Will. On the other hand, the respondent did not open or insist on his cross - appeal, which was brought for the purpose of raising the question whether the deceased was precluded from from disposing of his estate by will, in prejudice of his heir-at-law, either by Mahomedan law or by Act I of 1869."

(Emphasis added)

The aforesaid observations of the Privy Council were referred by the High Court of Lahore in Firoz & Ors. vs. Sultan Surkhru AIR (1926) Lahore 635 wherein the High Court held that in case of cancellation of Will, Article 120 of the Limitation Act, 1887 was applicable which corresponds to the present Article 113 of the Limitation Act. The observations of the Lahore High Court made in paragraph 7 of the aforesaid judgment are reproduced hereinbelow:-

"7. The question of limitation remains. It is clearly laid down in Sajid v. Ibdad (1986) 23 Cal 1 by their Lordships of the Privy Council that Article 91 does not govern a Will. It is true, as pointed by counsel, that this was an obiter dictum in the sense that the question was not contested, but their Lordships say that the plaintiff advisedly refrained from relying on this article as it had no application to the case of a Will. Apart from this expression of opinion and wording of the Article itself makes the point very clear. Article 91 not being applicable and the suit being one primarily for cancellation of a Will Article 120 applied. The plaintiff here states that he had knowledge of the Will within six years of the institution of the suit but unfortunately for him this contention is rendered impossible by the averments contained in the plaint itself where it is stated that on the death of Mehra the applications of the defendants to obtain mutation of one-half of his estate was defeated by the objection of the plaintiff's own father, the previous paragraphs in the plaint having recited the factum of the execution of the registered Will, it is clear therefore, on the plaintiff's own showing, that he had knowledge about nine years before the institution of his suit and his suit is therefore barred by time."

(Emphasis added)

Original Suit No. 13 of 1978 was filed within three years of the death of the testator. The Will of Brij Lal excluded the plaintiff and the cause of action to institute a suit for cancellation of Will did not accrue in favour of plaintiff till the death of Brij Lal, the testator. The rights of the plaintiff in the suit property were, for the first time, invaded by the defendant nos. 2 to 6 when they got their name mutated in the revenue records on the basis of the Will of Brij Lal. In any case, the cause of action for instituting a suit for cancellation of Will could not have accrued in favour of the plaintiff before 05.11.1976 and the suit for cancellation of Will would have been within the time, under Article 113 of the Limitation Act, till 04.11.1979. The suit was registered on 04.01.1978. Apparently, Original Suit No. 13 of 1978 was filed within time.

It was argued by the counsel for the defendant-respondent that in his plaint instituting Original Suit No.13 of 1978, the plaintiff had pleaded that the cause of action arose for filing the suit six months before the filing of the suit, i.e., the date on which he came to know about the execution of the Will from the Gram Pradhan of the Village and, therefore, whether the suit was within limitation had to be considered on the aforesaid pleadings and not on the argument of the plaintiff that the suit was within limitation because the cause of action for filing the suit accrued after the death of the testator.

I am unable to agree with the aforesaid contention of the counsel for the defendant-respondent. It was held by the Division Bench of this Court in Raj Kumar Jain & Ors. vs. Smt. Jagwati Devi & Ors. AIR (1980) Allahabad 225 that while computing the period of limitation, the plaint has to be read as a whole with a view to find out the date on which the cause of action accrued and that the plaintiffs cannot be tied down to the date of cause of action mentioned in the plaint. In the aforesaid case, the Supreme Court while discussing the limitation for filing a suit for declaration of rights which were infringed by the Will, held that the limitation for filing such a suit would be counted from the date when the defendants obtained probate of the Will. The observations of the Division Bench of this Court in Paragraph nos. 18 and 19 are reproduced herein below:-

"18. It may be that the defendants had, to the knowledge of the plaintiffs, asserted on the death of Ram Katori that they were entitled to the property in dispute on the basis of the will executed by Ram Katori and that according to them the plaintiffs were not its owners, this denial by itself did not amount to an unequivocal threat by them to infringe with the rights of the plaintiffs who admittedly were in possession of the property after Ram Katori's death. As observed by the Supreme Court in Rukhma Bai's case (supra) the threat which results in accrual of a right to file a suit must be an unequivocal threat to infringe the right asserted by the plaintiff in the suit. The real threat to infringe the rights of the plaintiffs, in the circumstances of the case, arose when the defendants successfully obtained probate of the will on 26th Oct., 1961 and there was a likelihood that in pursuance of that probate they would take steps to interfere with the rights of the plaintiffs. In the circumstances the suit for declaration filed by the plaintiffs within 6 years of 26th Oct. 1961 was well within the period of limitation.

19. Learned counsel for the appellant then contended that as the plaintiffs themselves had mentioned in the plaint that the cause of action for filing the suit had accrued on 30th Oct., 1955 they should not be permitted to go behind that statement and to claim limitation from the date on which the defendant had obtained the probate from the Court of District Judge, Meerut. We are unable to accept this submission. As held by the Lahore High Court in the case of Fateh Ali Shah v. Mohammad Baksh AIR 1928 Lah 516 that in computing the period of limitation the plaint has to be, with a view to find out the date on which the cause of action accrued read as a whole and that the plaintiffs cannot be tied down to the date of cause of action mentioned in the plaint. In the instant case, we find that the plaint read as a whole and specially paras 12 and 13 thereof, indicates that according to the plaintiffs threat of infringement of their rights arose when on 28-10-1961 the defendants successfully obtained the probate of the will dated 26th Oct., 1955, executed by Ram Katori, from the Court of the District Judge, Meerut. The suit filed within 6 years of that date was, therefore, clearly within limitation."

(Emphasis added)

In light of the observations by the Division Bench of this Court the contention of the counsel for the defendant-respondent regarding the cause of action for instituting the suit is not acceptable.

It was further argued by the counsel for the defendant-respondent that the Will was a registered document and, therefore, in view of Section 47 of the Registration Act, 1908, the Will commenced to operate from the date of its execution and not from the date of the death of the testator. The argument deserves to be summarily rejected without any discussion. The operation of a Will is governed by the Indian Succession Act, 1925 and not by Registration Act, 1908. Registration of Will is not compulsory under Section 17 of Registration Act, 1908. It is sufficient to state that Section 47 of the Registration Act is not applicable on testamentary dispositions. The counsel for the defendant-respondent wants the Court to believe in the existence of a ludicrous situation where the disposition of property by testamentary instruments which state that the property included in the Will shall devolve on the beneficiaries after the death of the testator will be operative from the date of the execution of the Will, i.e., before the death of the testator and thus the devolution of property would take place before the death of the testator. If the argument of the counsel for the respondents is accepted, then a registered Will will be effective from the date of its execution and an unregistered Will will be effective from the date of the death of the testator. The absurdity of such a situation is self evident and does not require any more elaboration.

In 1902, a suit was instituted in a Civil Court within the jurisdiction of Allahabad High Court for cancellation of a Will during the life time of the testator. A Division Bench of this Court in Rambhajan Kunwar & Ors. Vs. Gurcharan Kunwar reported in 1905 ILR 27 (Allahabad Series) 14 referred the suit as a ridiculous one. The observations of the Division Bench of this Court are reproduced herein below:-

"The suit of from which this appeal has arisen is a ridiculous one. It is brought by the plaintiff to have a will of the defendant no. 1, a living person, cancelled. In the written statement the defendants pointed attention to the fact that a suit claiming such relief could not be maintained. The will of a living man does not come into operation when it has been executed, but only upon his death. So long as a testator is living he may at any moment cancel his will and make a totally different disposition of his property. This power he possesses up to the hour of his death, provided he be competent then to execute a valid will. It is idle to contend that a party can come into Court and successfully claim to have the will of a living person set aside. Unfortunately the learned Subordinate Judge was of a different opinion. In his judgment he finds that a suit for cancellation of a will may be maintained. In this we are wholly unable to agree with him. It is said by the learned vakil for the plaintiff respondent, who has obtained a decree in the court below, that this question was not raised in the memorandum of appeal. It is a matter, however, which the Court is bound to take notice of, and which is apparent, or ought to be apparent, to any lawyer. We allow the appeal, set aside the decree of the Court below, and dismiss the suit with costs in all Courts."

(Emphasis added)

If the plaintiff appellant had instituted a suit for cancellation of Will during the lifetime of Brij Lal himself, a document which could have been revoked by Brij Lal, the said suit would have been a ridiculous one as observed by the Division Bench of this Court in Rambhajan Kunwar (supra). The plaintiff - appellant cannot be non-suited for not having instituted a ridiculous suit. The judgment was delivered by the Division Bench of this Court in 1904, i.e., almost 120 years back. It is unfortunate that the trial court and the lower appellate court have non-suited the plaintiff for not having filed a ridiculous suit. The judgments and decrees of the courts below are contrary to law and liable to be set-aside.

In light of the reasons given above the judicial precedents referred by the counsel for the defendants / respondents are not relevant in the present case and require no discussion.

The appeal is allowed. The substantial question of law is answered accordingly.

The judgment and decree dated 20.11.1976 of the trial court dismissing Original Suit No. 13 of 1978 as well as the judgment and order dated 06.09.2011 of the lower appellate court dismissing Civil Appeal No. 23 of 1980 are, hereby, set aside.

In view of the observations of the Supreme Court in its judgment dated 16.04.2008 passed in Civil Appeal No. 2815 of 2008, the judgment and decree dated 21.09.1983 passed by the lower appellate court in Appeal No. 23 of 1980 is restored and consequently Original Suit No. 13 of 1978 stands decreed.

Parties shall bear their own costs.

Order Date :- 25.4.2023

Vipasha/Satyam