Vishnu Mittra Govil vs State
2004 Latest Caselaw 308 Del

JUDGMENT

Mukundakam Sharma, J.

1.In this testamentary proceeding written statement/objection was filed by Mr. Shiam Sunder Lal. On the basis of the petition and the said written statement which was filed by way of objection, the Court has also framed the following issues:-

1. Whether late Shri Shree Krishan had executed any valid Will in favor of the petitioner? If so, its effect.

2.Relief.

2.The issues were framed as far back as on 15.2.,2002. While filing the said petition the petitioner has sought for grant of probate/letter of administration in respect of the alleged Will dated 17.12.1980 executed by late Shri Shree Krishan registered on 23.12.1980 with the Registrar of the Documents, Delhi. In the said proceeding order was passed by this Court for publication of the citation in "The Statesman". Notice was also directed to the issued to the relations mentioned in paragraph 5 of the petition. Subsequent thereto Mr. Shiam Sunder Lal / the objector filed his written statement. It is stated in the said written statement that Shri Shree Krishan had not bequeathed any property to the petitioner. It was also denied that Shri Shree Krishan had left behind him any valid Will. However, it is an admitted position that in the said written statement no objection was at all raised contending that the probate proceeding is in any manner barred by limitation.

3.In view of the aforesaid position, no issue regarding the petition being barred by limitation was framed in the said proceeding. The witnesses are being examined wherein also no such suggestion regarding limitation was put on behalf of the respondent/objector. Now, an application has come to be filed in this Court which is registered as IA No.903/2004 contending, inter alia, that the probate proceeding is barred by limitation and, therefore, the plaint is required to be dismissed on the said ground. This application is purportedly filed under the provisions of Order VII Rule 11 of the Code of Civil Procedure.

4.Since the said application was listed for arguments, I have heard the counsel appearing for the parties on the said application. By filing the said application the relation No.3 seeks rejection of the plaint on the ground that the probate proceeding is barred by limitation. It is an established position of law that the question of limitation is a mixed question of fact and law. Such a plea regarding limitation could and should have been raised at least at the stage when the written statement/objection was filed. The probate proceeding is at the stage of trial and several witnesses have already been examined. Even at that stage no such plea was raised nor any suggestion was given regarding limitation on behalf of the objector. Subsequently this application is filed praying for rejection of the plaint on the ground of limitation contending that in view of the decisions of this Court in Pamela Manmohan Singh v. States & Ors, , and Glitter Buildcon Pvt. Ltd. v. Sanjay Grover and ors., , the petition is liable to be rejected. It was submitted by the objector in support of the aforesaid application that the Will was executed by the testator on 17.12.1980 and that the testator died on 21.12.1989 but the present proceeding was filed seeking for grant of probate/letter of administration only in the year 1996. However, it is to be noted that although the present probate proceeding was filed in 1996, the said proceeding is ordered to be taken up along with Suit No.644/1990, which is filed by the objector herein, namely, the relation No.3 seeking for a decree for partition, declaration and injunction in respect of the suit property.

5.A reading of the provisions of Order VII Rule 11 of the Code of Civil Procedure indicates that the plaint can be rejected only if it appears from the statement in the plaint to barred by any law. In Mohan Lal Chatrath v. M.C.D, Delhi, , a Division Bench of this Court has held that even if the expression "the statement in the plaint" is given a liberal interpretation, documents filed with the plaint may be looked into, but nothing more. It is thus clear that the said provision would be applicable only to those cases where the statements made in the plaint read with the documents filed, without any doubt or dispute establish that the suit is barred by any law in force. The specific plea on which rejection of the plaint is sought for in this case is the ground of limitation. Such a question is undoubtedly is a mixed question of law and facts. Article 137 of the Limitation Act, on which reliance was placed by the counsel for the respondent in support of his plea that the petition is barred by limitation, does not by its terms make specific reference to applications for grant of probate and letters of administration with or without the Will annexed. The period of limitation provided under the said section is three years from the date when the right to apply occurs. In a proceeding filed for grant of probate or letters of administration strictly speaking no right or claim is asserted by the applicant. The author of the testament has only cast the duty with regard to the administration of his estate and the applicant for probate or letters of administration by instituting the proceeding only seeks the permission of the court to perform the said duty. In Ramanand Thakur v. Parmanand thakur, , and Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani, , it was held that since the right to apply for probate or letters of administration is a recurring one, it will be inappropriate to fall back upon Article 137 of the Limitation Act. When the statement of the plaint and the documents filed with the plaint are read in the present case, it is not possible to come to a definite conclusion as to when the right to apply for probate had actually accrued without any doubt or dispute. Such conclusion cannot be arrived at more so on a bald statement of the objector raised in an application of the nature filed in the present case, where not only the respondent had filed the written statement without any such statement and the issues have been framed but the trial has also started and the evidence of the petitioner has also been recorded.

6.In the light of the aforesaid discussion, it is held that the application filed by the respondent-objector is misconceived and cannot be entertained, and is accordingly dismissed.

7.Renotify the probate petition before the Joint Registrar on April 12, 2004 for orders.