Sanjay Kapur vs State & Others
2008 Latest Caselaw 1728 Del

25.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     Test Case No.15/2001 & I.A. No.13895/2006

                   Date of decision : 24th September, 2008.
      SANJAY KAPUR                             ..... Petitioner
                   Through Mr.Sudhir Nandrajog, Mr.Sidharth
                   Bamtha, Mr.Gaurav Gupta, Advocates.

                   versus

      STATE AND ORS.                  ..... Respondents

Through Mr. Arun Khosla, Advocate.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether Reporters of local papers may be

allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported

in the Digest ?

IN OPEN COURT

SANJIV KHANNA, J.:

I.A. NO. 13895/2006

1. This application has been filed by respondent nos. 8 and 9

under Order VII, Rule 11 read with Section 151 of the Code of Civil

Procedure, 1908 stating, inter alia, that the Petition under Section 228 of the Indian Succession Act, 1935 (hereinafter referred to as the Act,

for short) is barred by limitation.

2. Subject matter of the present petition under Section 228 of the

Act is Will dated 16th May, 1990 purported to have been executed by

late Smt. Kailash Kapoor. High Court of Justice, District Probate

Registry of Birmingham, England and Wales has issued probate in

respect of the said Will vide order dated 21st November, 1997.

3. Learned counsel for the respondent nos. 8 and 9 submits that

cause of action for filing the application under Section 228 of the Act

arose when the said probate was granted on 21st November, 1997 in

terms of Article 137 of the Limitation Act, 1963, the present Petition

should have been filed within three years thereafter. The present

petition was filed on 28th

February, 2001 and is barred by limitation. Learned counsel relies

on Kerala State Electricity Board, Trivandrum versus T.P.

Kunhaliumma, reported in AIR 1977 SC 282 wherein it has been

observed that Article 137 is a residual provision and the words "any

other application" used therein applies not only to applications filed

under the Code of Civil Procedure, 1908 but an application under

any Act. He also relies upon the observations made by the Punjab

and Haryana High Court in Estate of late Shri Gurcharan Dass Puri reported in AIR 1987 P&H 122 wherein it has been observed as

under:-

"In Ramanand‟s case (AIR 1982 Patna 87) (supra), the application was filed for grant of probate of a will. In that context, it was observed therein that in the case of an application for grant of probate or letters of administration, it is difficult to find out as to when the right to apply accrues and unless that date can be fixed, there is no question of starting of the period of limitation. The right to apply for a probate accrues from day to day so long as the will remains unprobated. In other words, the right to apply accrues every day and the cause of action for an application for probate arises every moment so long as the will remains unprobated and therefore, for such an application there is no period of limitation. As a matter of fact, it appears that these observations were made by the Patna High Court in the said case with respect to the right to apply for the grant of probate of a will. Stress was laid therein that in the case of a probate, the right to apply for making the application accrues from day to day so long as the will remains unprobated and, therefore, the question of the applicability of Art. 137 of the Limitation Act, 1963, to such a case did not arise. ......"

4. Learned counsel submits that the aforesaid decision was

followed by Punjab & Haryana High Court again in State of Punjab

versus Shri Vishwajit Singh and others reported in AIR 1987 P&H

126. Learned counsel for respondent nos. 8 and 9 placed special

emphasis on the words "as long as Will remains unprobated" and

"right to apply for making an application accrues from day to day as long as Will remains unprobated" used by Punjab & Haryana High

Court in the case of Gurcharan Singh (supra).

5. It is well settled that Art.137 of the Limitation Act, 1963 does not

apply to petitions for grant of probate and letters of administration.

The reason as explained by the Madras High Court in S.

Krishnaswami and ors versus E. Devarajan and others reported

in AIR 1991 Mad. 214 is as under:-

"17. 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 letter of Administration issued by a competent Court is conclusive proof of the legal character throughout the world. An assessment of the relevant provisions of the Indian Succession Act, 1925 does not convey a meaning that by the Proceedings filed for grant of probate or letters of administration, no rights of the applicant are settled or secured in the legal sense. The author of the testament has cast the duty with regard to the administration of his estate, and the applicant for probate or letters of administration only seeks the permission of the Court to perform that duty. There is only a seeking of recognition from the Court to perform the duty. That duty is only moral and it is not legal. There is no law which compels the applicant to file the proceedings for probate or letters of administration. With a view to discharge the moral duty, the applicant seeks recognition from the Court to perform the duty. It will be legitimate to conclude that the proceedings filed for grant of probate or letters of administration is not an action in law. Hence, it is very difficult to and it will not be in order to construe the proceedings for grant of probate or letters of administration as applications coming within the meaning of an „application‟ under Art. 137 of the Limitation Act, 1963.

18. x x x x

19. x x x x

20. We have now, as per our preceding discussion, settled the question and we hold that Art.137 of the Limitation Act would not apply to proceedings filed for grant of probate or letters of administration with or without the Will annexed. Before concluding, we must point out that though the proceedings filed for grant of probate or letters of administration may not come within the mischief of Art.137 of the Limitation Act, 1963, yet the delay aspect is relevant to test the genuineness of the Will propounded. Delay in taking steps gives rise to suspicion and the longer the delay the stronger the suspicion."

6. The aforesaid reasoning given by Madras High Court has been

followed by a Division Bench of this Court in S.S. Lal versus Vishnu

Mitter Govil reported in 112 (2004) DLT 877 (DB), inter alia, holding

that in a petition for grant of probate or letters of administration, there

is no right asserted or claimed by the applicant. The applicant only

seeks recognition from a court to perform a duty. Probate or letters of

administration is a conclusive proof of the legal character. No right is

asserted or claimed. I may only note here that the decision of the

Supreme Court in the case of Kerala State Electricity Board (supra)

was noted by the Division Bench of this Court in the case of S.S. Lal (supra) but it was observed that the said reasoning and Art. 137 of

the Limitation Act, 1963 would not apply to a petition for grant of

probate or Letters of Administration. Similar view has also been

taken by Single Judges of this Court in Kanwal Malhotra versus

State reported in 125 (2005) DLT 281 and Rajesh Sharma versus

Krishan Kumar Sharma reported in 143 (2007) DLT 216.

7. Section 228 of the Act reads as under:

"228. Administration, with copy annexed, of authenticated copy of Will proved abroad.-When a Will has been proved and deposited in a Court of competent jurisdiction situated beyond the limits of the State, whether within or beyond the limits of India, and a properly authenticated copy of the Will is produced, letters of administration may be granted with a copy of such copy annexed."

8. I feel that the reasoning and the ground given by the Madras

High Court in E.Devarajan (supra) and a Division Bench of this Court

in S.S. Lal (supra) and Single Judges of this Court will equally apply

to a petition under Section 228 of the Act. By filing a petition under

Section 228 of the Act, the applicant seeks enforcement of the same

recognition which one is entitled to as in a probate petition or a

petition for grant of Letters of Administration. The basic purpose and

object behind the two petitions is the same, i.e. to seek recognition

from the Court to perform a duty. Purpose and object is the same.

9. Observations made by Punjab and Haryana High Court in the

case of Gurcharan Das (supra) to which pointed reference was

made by the learned counsel for the respondent Nos. 8 and 9 are in a

different context altogether. The said observations will apply when a

person seeks revocation of a probate. This aspect has been

explained by the Division Bench of this Court in the case of S.S. Lal

(supra), where an earlier decision of Punjab & Haryana High Court in

Hari Narain (decd.) through lrs versus Subhash Chander & ors

reported in AIR 1985 P&H 211 was cited and distinguished on the

ground that the ratio of the said decision applies when an

application/petition is filed for revocation of Will. The said ratio will not

apply to cases where a petition under Section 228 of the Act is filed.

10. For enforcing undisputed Wills in India, either a probate

petition or a petition for letters of administration is required. Where,

however, a Will has been proved and deposited in a court of

competent jurisdiction outside India, a petition under Section 228 of

the Act is required to be filed for grant of letters of administration.

After an application under Section 228 of the Act is filed and allowed,

the effect thereof is that letters of administration is granted in favour

of the applicant/petitioner. Therefore, Section 228 of the Act is akin to

provisions of Section 222 and 276 of the Act. The object and purpose is the same, i.e. to seek recognition in respect of Will in question. No

distinction is justified keeping in view the object and purpose of the

aforesaid Sections of the Act. In fact, Section 228 of the Act is an

enabling provision which entitles the petitioners/applicant to get

letters of administration on the basis of a Will proved and deposited in

a foreign court. Nevertheless, the final order is issue of letters of

administration, if the petition is allowed.

In view of the above, I do not find any merit in the present

application and the same is accordingly dismissed. No costs.

Test.Case No.15/2001

11. Test.Case no.15/2001 relates to Will dated 16th May, 1990 while

petitioner in Test Case no.23/2003, relies upon Will dated 29th April,

1990. The Will relied upon by the petitioner in Test.Case No.15/2001

is subsequent in point of time.

12. Learned counsel for the parties agree that both the petitioners

will file affidavit by way of evidence within eight weeks but evidence

will be first recorded in Test. Case No. 15/2001. Cross examination of

the common parties/witnesses in the two Test Cases will be done in

Test.Case no.15/2001 and the said evidence will be read in

Test.Case no.23/2003 also. This will avoid duplication of evidence

and other complications. However, evidence of witnesses who are not common, will be separately recorded in the two test. cases with

the rider that the evidence will be first recorded and concluded in

Test.Case no.15/2001.

List before the Joint Registrar on 15th December, 2008 when

dates will be granted for cross examination of common

parties/witnesses of the petitioner in Test.Case No.15/2001 and for

examination in chief/cross examination of third party/official

witnesses.

SANJIV KHANNA, J.

SEPTEMBER 24, 2008.

P