Shri Rajindra Motwani vs State And Others
2014 Latest Caselaw 603 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                     Reserved on :04.09.2013
                                                     Decided on :31.01.2014
+     TEST CAS. 99/2008

      SHRI RAJINDRA MOTWANI                      .... Petitioner
                       Through Ms.Inderjeet Saroop, Advocate
                versus

      STATE AND OTHERS                                  ..... Respondents
                   Through            Ms.Anuradha Sharma, Adv. for R-2
                                      to R-5.
                                      Mr.Neeraj Kumar Jain, Senior
                                      Advocate with Mr.Saurabh Suman
                                      Sinha and Mr.Ravneet S.Joshi,
                                      Advocates for R-6 to R-8
      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH


JAYANT NATH, J.

1. The present probate petition is filed under Section 276 of the Indian Succession Act seeking probate for the last Will and testament dated 29.08.1997 of the deceased late Sh.Pritam Das. The present petition is filed by Sh.Rajendra Motwani, the son of the Testator and the sole executor of the Will. The said Testator-Late Sh.Pritam Das expired on 12.04.2000. His last place of residence is stated to be A-1/33, Janak Puri, New Delhi.

2. As per the memo of parties, the said Testator-Late Sh.Pritam Das is survived by four daughters, namely, respondents No.2 to 5 and four sons, namely, the petitioner and respondents No. 6 to 8.

3. The notices were issued on 05.11.2008 and publication was also ordered in Hindustan Times (English) and Nav Bharat Times (Hindi). The necessary citations were published.

4. Respondents No. 2 to 5 separately filed their response to the petition stating that they have no objection to grant of the present probate petition. Respondent No.7- Mr.Madhavdas Motwani filed reply/written statement objecting to the grant of the present probate petition on 31.03.2009. Subsequently another reply/written statement was filed on behalf of respondents No.6, 7 and 8 which was filed on 16.01.2010. This Court on 18.11.2010 noted that respondent No.7 has already filed objections which are on record. It was further noted that the objections which were then filed were only signed by respondent No.6 and were supported by his affidavit only. Similarly, respondent No.8-Sh.Shyam Lal Motwani had also not signed the said objections which were filed on 16.01.2010. Hence, this Court directed that the objections filed on 16.01.2010 be considered as only objections on behalf of respondent No.6-Mr.Virumal Motwani and the same be taken on record accordingly. Respondents No.6 and 7 have separately taken somewhat the same objections in their reply/written statement. It is claimed that the Will dated 29.08.1997 has been set up mala fide by the petitioner and the same is false, fabricated and forged. It is further stated that the Will mentions that the sons of the deceased were settled in USA and have properties and that this statement is factually incorrect and could not have been made by the Testator. It is further stated that without waiting to get probate of the Will, the petitioner sought to apply to DDA for mutation

in respect of the Janak Puri house. Hence, respondent No.6 had written to DDA to withhold the mutation of the property. DDA in response to the said letter of respondent No. 6 on 24.02.2006 wrote that mutation would not be finalised until either the family settlement is arrived at or the Will is probated by a competent court of law. It is further stated that the Will dated 29.08.1997 which is being propounded by the petitioner also refers to number of other Wills said to have been executed by the Testator. It is stated that the frequency of making Wills is not usual. Further, the testator would not have the record of the earlier Wills yet Will dated 29.08.1997 mentions the said Will. Reliance is also placed on letter dated 17.06.1982 which has been written to the petitioner by a Chartered Accountant. It is stated that this letter unequivocally shows that the petitioner was trying to forge and fabricate the Will of the Testator. It is further averred that the alleged Will is false and unreasonable as it seeks to disinherit completely some of the children of the deceased including respondents No.6 and 7. Respondent No.6 in his objections apart from repeating the above contention has claimed that the present petition is barred under Article 137 of the Limitation Act. He has also relied upon last Will and testament dated 25.03.2000 which he states was the actual last Will and testament of the Testator. Copy of the said Will is filed along with the objections.

5. Subsequently, the said respondent No.6 has also filed a separate probate petition being No.47/2011 pertaining to the said Will dated 25.03.2000, on 26.05.2011. On the basis of the above averments, the grant of present probate petition is objected to.

6. Parties led their evidence. At the time of final arguments, it was noticed that issues have not been framed. With the consent of the parties the following issues were framed on 03.09.2013.

(i) "Whether late Shri Pritamdas executed a legal and valid Will dated 29.8.1997 and if so, its effect?

(ii) Whether the said will dated 29.8.1997 is the last and final will of late Shri Pritamdas?

(iii) Whether Petition being Test.Cas.99/2008 and Test.Cas.47/2011 respectively are barred by limitation?

(iv) Whether the Will dated 25.3.2000 of late Shri Pritamdas is a legal and valid will and if so its effect?

(v) Whether the said Will dated 25.3.2000 is the last and final will of late Shri Pritam Das?

(vi) Relief."

7. As far as Testamentary Case No.47/2011 is concerned, this pertains to alleged Will dated 23.05.2000 said to have been executed by late Sh.Pritam Das. Admitted fact is that none of the witnesses to the said Will have filed any evidence in support of the said Will. In the course of the arguments, learned senior counsel for respondent No.6 admitted that he does not press Testamentary Case No. 47/2011. Issues No.4 and 5 are answered accordingly.

8. The crucial issue that now survives is as to whether late Sh.Pritam Das executed a legal and valid Will dated 29.08.1997, which was his last testament, i.e. issues no.(i) and (ii).

9. The petitioner PW-1 has filed his evidence. He has exhibited the Will and PW-2, Ms.Godawari, the daughter of Late Sh.Pritam Das, also respondent No.2 and one of the witnesses to the Will also deposed. For the respondents only R6/W-1, Mr.Virumal Motwani, respondent No.6, has tendered his evidence.

10. Learned counsel for the petitioner has vehemently urged that in view of the un-rebutted evidence filed by Ms.Godawari, the witness to the Will, the Will stands duly proved and present probate petition for grant of probate may be granted.

11. On the other hand, learned senior counsel for respondents No.6 to 8 has reiterated the submissions made by the said respondents in their objections to the Will. He submits that though the testator may have been in sound disposing mind at the period in question, but the Will has not been executed out of his own free will. He relies upon the testimony of Ms.Godawari/PW-2 and testimony of RW-1/Mr.Virumal Motwani to contend and demonstrate that the Will is surrounded by suspicious circumstances. It is further urged that the beneficiary of the Will, namely, the petitioner, who is also the propounder of the Will, had taken an eminent part in execution of the Will. It is urged that no justifiable reasons have been brought on record as to why the Testator-Late Sh.Pritam Das would exclude his other legal heirs giving substantial part of his assets to the petitioner. It is further urged that the justification to exclude the said other natural legal heirs as given in the Will is also based on incorrect statement of facts. It is also urged that the Will did not see the light of the day for nearly four years

after the death of the father, which also indicates suspicious circumstances.

12. It is also vehemently urged that the alleged Will is dated 29.08.1997. Sh.Pritam Das died on 12.04.2000. The present probate petition filed in 2008 is barred by limitation and hit by Article 137 of the Schedule to the Limitation Act.

13. Learned Senior Counsel for the said respondent has also placed on record compilation of judgments, some of which he has stressed upon. He has also relied upon the judgment in the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Ors AIR 1959 SC 443; and Indu Bala Bose and Others Vs. Manindra Chandra Bose and Anr. (1982) 1 SCC 20 to contend that if a propounder of a Will himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, these are circumstances to be taken into account and a prepounder is required to remove doubts by clear and satisfactory evidence. Reliance is also placed on the judgment of the Hon'ble Supreme Court in the case of Bharpur Singh Vs. Shamsher Singh (2009) 3 SCC 687.

14. Learned counsel for the petitioner has relied upon the judgment of the Hon‟ble Supreme Court in the case of Smt. Malkani v. Jamadar & Others; AIR 1987 SC 767 to contend that mere presence of beneficiary at the time of execution of the Will is not sufficient to create a doubt about the Will. He also relies upon the judgment of the Hon'ble Supreme Court in the case of Gurdev Kaur and Ors Vs. Kaki and Ors, AIR 2006 SC 1975 to contend that even if a Will results in disinheritance of some and grant to another the

Will would still be valid if it appears on the face of it to have been duly executed and attested in accordance with the requirements of statute.

15. I have heard learned counsel for the parties.

16. The testimony of PW-2-Ms.Godawari has remained unchallenged. She has clearly pointed out that her father late Sh. Pritam Das was in sound disposing mind. She was personally present and saw her father affixing his signatures on the Will. She has identified the signatures of her father on the Will. She has further stated that she has signed the Will at point „B‟ in the presence of her father and other witness, namely, Dr.Shailendra Gaur who was also present at that time and signed in her presence and in the presence of her father. Will was executed and registered with the Office of the Sub- Registrar II. The Will marked as Ex.PW-1/1. In her cross-examination she has denied that the father did not know the English language. She has categorically stated that her father had called Dr.Shailender Gaur to be present. She has given the reasons as to why respondents No.6 to 8 have been excluded, namely, they own or possess properties in USA. She has pointed out that she has personally visited their houses in USA and she was told by them that these were their houses. She has further pointed out that none of the three respondents i.e. respondents No.6 to 8 after execution of the Will visited the father till his death. Reference may be had to the relevant portion of her cross examination that took place on 08.09.2009 which reads as follows:

"I know little bit of English. My father had got prepared Ex.PW1/1. My father himself got it typed. Ex.PW1/1 was prepared on the dictation of my father. My father was

matriculate. It is incorrect to suggest that my father did not know English language. As per the Will, the back portion of the property was bequeathed by my father in favour of his three daughters namely Raj Kumari, Mohini and Shanti and the front portion of the house was bequeathed to his son namely Rajinder. Ex.PW1/1 was got prepared through Retd. Justice Shiv Dayal. I do not know if the same was typed at the place of Justice Shiv Dayal or not."

17. There is nothing in the cross-examination to show that the Testator has not signed the Will out of his own free will and voluntarily.

18. I will now deal with the two main objections raised by respondents No.6 to 8. It has been firstly vehemently urged by respondents No.6 to 8 that the petitioner/propounder of the Will was present when the same was executed and registered before the Office of Sub-Registrar and that this vitiates the Will. Reliance has been placed on the cross-examination of PW- 2 where she has admitted that Sh.Rajendra Motwani was present and that he had taken the two witnesses and the Testator to the Office of the sub- registrar in his car.

19. However, from the cross-examination of PW-2 nowhere does it emerge that the said Rajendra Motwani in any way was pressurising or forcing his father, the Testator-Late Sh.Pritam Das to execute and sign the Will. In fact R6-W1 Sh.Virumal Motwani in his evidence has also not been able to show as to whether the presence of Rajendra Motwani in any way influenced the execution of the Will.

20. The explanation given for the presence of Rajendra Motwani is

plausible, namely, that he was the only son residing at that time in Delhi and hence, he had been asked by his father to accompany him. Even otherwise in the cross-examination of Rajender Motwani, there is no question put to him regarding his presence at the time of execution of the Will. No evidence is led by respondents 6 to 8 to show how the presence of the petitioner at the time of execution/registration of the Will was an attempt to influence or coerce the testator.

21. Reference may be had to the judgment of the Hon‟ble Supreme Court in the case of Smt.Malkani vs. Jamadar & Ors., (supra) where it was held that mere presence of a beneficiary at the time of execution of the Will is not sufficient to create a doubt about the testamentary capacity or genuineness of the Will. Relevant portion of the said judgment reads as follows:-

"3. ... The learned Additional District Judge had taken the care of observing that the only circumstance brought out was that the defendants who were the beneficiaries under the will, Exh.D-1, had taken an active part in its execution. But he rightly observed that, that by itself was not sufficient to create any doubt either about the testamentary capacity of Mst.Pari or the Genuineness of the will...."

22. Hence, in the given facts respondents No. 6 to 8 have not been able to show that mere presence of the petitioner at the time of the execution and registration of the Will has any material bearing on the authenticity or genuineness of the said Will.

23. The reliance of learned Sr. Counsel for the respondents 6 to 8 on the judgments of the Supreme Court in the case of Venkatchala & Ors. Vs. B.N.

Thimmajamma (Supra) and Indu Bala Vs. Manindra Chandra Bose (Supra) is misplaced.

24. In Venkatchalala & Ors. Vs. B.N. Thimmajamma (Supra) the Hon‟ble Court in para 21 held as follow:

"21. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence."

25. Reference may be had to the relevant portion of the judgment in Indu Bala Vs. Manindra Chandra Bose (supra) in para 7 where the judgment reads as under.

"7. ....If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstances to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence." - If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations."

26. In the facts of the present case, the propounder, namely, the petitioner was, no doubt, present when the Will has been executed and got registered.

The Will, no doubt, confers a substantial benefit on him. However, there is no evidence on record to show that he has taken a prominent part in execution of the Will. No evidence is placed on record to show that there is any suspicious circumstances on the execution of the Will by the testator. Mere presence of the petitioner at the time of execution does not create any doubt on the free execution of the Will by the testator.

27. The second two inter-connected objections made by respondents No.6 to 8 are that there are no justifiable reasons for exclusion of most of the natural heirs from his estate by late Sh. Pritam Das and further that the justification given in the Will is based on incorrect statement of facts.

28. There is no merit in the said contentions of the learned counsel for the respondents No.6 to 8. Relevant portion of the Will which justifies the exclusion of respondents No.6 to 8 from the benefits of the Will and other respondents is given in para 3, of the Will, relevant portion of which reads as follows:

"....My eldest daughter Smt.Godawari is in Delhi living with her husband and family in their own house and is well to do. My three sons Virumal, Madhav Das and Shyam Lal are settled in U.S.A. and are carrying on their business separately and are flourishing there. I have already made gifts of immovable property in favour of Godawari, Madhav Das and Shyam Lal. Virumal is very well off and owns property of his own in U.S.A. I want to bequeath all of my remaining properties to Raj Kumari, Shanti, Mohini and to my son Rajendra who is since married and has been running the household. Rajendra with his wife is residing permanently with me in my residential house and they are looking after me constantly every moment and serving me with all devotion and at his own expense."

29. The Testator himself in his Will has given the reasons for exclusion of some of the natural legal heirs as beneficiaries of his present Will.

30. In his affidavit by way of evidence R6-W1 Mr.Virumal Motwani has tried to show that this explanation is not correct and that none of the sons of deceased Testator who have settled in USA own any residential house in the said country. Hence, it is stressed that there is a factual inaccuracy in the statement which has been made by the Testator in his Will pertaining to ownership of assets by the respondents No. 6 to 8. In his cross-examination, the said R6W1 admits that the property mentioned in Ex.R6W1/P6 which is acquired by his wife is also owned by him as per US laws and costs of acquisition is US$ 7,75,000, though he claims that the price has considerably fallen. He also admits that in 1997 when the Will was executed, he owned the property at 6 Jervis Avenue, Syosset, New York and that the same is acquired by his wife. He also admits that at that time in 1997 he had property in India also.

31. In view of the above cross-examination of R6W1, it is obvious that there is no merit in the contention that there is a factual inaccuracy describing the assets of respondents No.6. Admittedly, in 1997 when the last Will and testament was executed, respondent No.6 had adequate property as described in the testament of late Sh.Pritam Das.

32. Regarding other two brothers, namely Sh. Madhavdas Motwani and Sh. Shyam Lal Motwani, no evidence has been led by the said two brothers

to show that they do not own any property in USA as stated by their father in the Will. In fact, light is thrown on this aspect by PW2 Smt. Godawari, who in her cross examination which took place on 08.09.2009, has said as follows:

"I did not ask my father as to why he did not give any property to Shri Veerumal, Madhav Dass and Shyam Lal. I do not know what they are doing in USA.

Q. Whether Shri Veerumal, Madhav Dass and Shyam Lal own and possess property in USA?

Ans. All three of them are having their own houses in New York and Shyam Lal has a property at Rohini.

I have not seen any title document in favour of Shri Shyam Lal as regards his property at Rohini. I have not seen any title document in favour of Shri Veeru Mal, Madhav Dass and Shyam Lal as regards their property at USA. Vol. I have personally visited their house at USA. This was told to me by them that it was their own houses."

33. Clearly, the above cross examination shows that the said respondents No. 7 and 8 also own properties in USA.

34. The said respondents have not been able to show that the statement made in the Will dated 29.08.1997 by the testator Sh. Pritam Das for exclusion of three brothers from the estate, is incorrect.

35. In fact, the evidence on record shows that defendants Nos. 6 to 8 though enjoying cordial relationship with their father, were not intimately in touch with their father in as much as they had settled abroad long back. R6-

W1, Sh. Virumal Motwani admitted that he migrated to America in December, 1971. In his cross examination on 16.11.2011 he admits that his mother Smt. Bhagwani died in 1992 (though he claims that he is not very certain of the year). He further confirms that he did not come to India for attending the funeral/last rites of his mother. Reference may be had further to cross examination of R6W1, conducted on 16.11.2011 where he stated as follows:

"I am not able to recall as to when did I meet my father for the last time, prior to his death. All I can say is that it was one or two years prior to his death, that too I am not very certain. It is incorrect to suggest that my last ever meeting with my father was during the petitioner's marriage in the year 1996. It is also incorrect to suggest that I did not meet my father even after 1996. It is also incorrect to suggest that I am deliberately not producing the passports in order to conceal this fact."

36. Further, reference may be had to his cross examination which took place on 21.08.2012 relevant portion of which reads as follows:

"I am not aware as to whether my father was on wheel chair and was immobile since January/February 2000, i.e. around three months prior to his death. I do not know as he was using catheter/urinary bag or as to whether he was under treatment from a neurologist. I do not know whether he was also suffering from severe lung infection or that there used to be liquid accumulation in his lungs which required to be drained out surgically. I do not know as to who used to take him to hospital. It is incorrect to suggest that my sister shante and my brother Rajinder as well as my other sister Godavri were looking after him or that they had been taking care of him for around 14 years prior to his death. I do not know as to who used to take him to the hospital or attend to his medical needs."

37. The above evidence/cross examination clearly shows that three

brothers namely respondent Nos. 6 to 8 had migrated abroad decades back. They were not in close touch with their father. Respondent No.6 has no knowledge about the condition of his father. In view of this background, it would not be possible to conclude that there are any suspicious circumstances on account of the fact that the said three brothers have been excluded from the Will and estate of late Sh. Pritam Das, by the Will dated 29.8.1997.

38. Reliance is placed by respondents 6 to 8 on the judgment of the Supreme Court in the case of Bharpur Singh Vs. Shamsher Singh (supra). The Hon‟ble Court in para 23 had held as follows:-

"23. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will: i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. ii. The condition of the testator's mind may be very feeble and debilitated at the relevant time. iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.

iv. The dispositions may not appear to be the result of the testator's free will and mind.

v. The propounder takes a prominent part in the execution of the Will.

vi. The testator used to sign blank papers. vii. The Will did not see the light of the day for long. viii. Incorrect recitals of essential facts."

39. In the facts of this case, the above judgment would have no application. In the facts of this case the valid execution of the Will has been proved. The testator was admittedly of sound disposing mind. There is no circumstance to show that any coercion, force or pressure was brought upon the testator to execute the said Will.

40. The third objection which has been raised by respondents 6 to 8 is that there has been long delay in surfacing of the present Will. What cannot be forgotten is that the Will is a registered document duly registered before sub-Registrar.

41. A plausible explanation has been given. Respondent No.6 has admitted that he has received a notice from DDA regarding the attempt by the petitioner to have the property mutated in his name and in the name of his three sisters sometimes in 2003, 2004 itself. Pritam Das had died in 2000. It is obvious that petitioner had approached DDA shortly thereafter and DDA took its own time in processing the application for mutation. In fact, the respondent No.6 has written a communication in 2006 whereby DDA has on 24.02.2006 informed that they would not act on the basis of the Will unless there is a family settlement or the Will is probated. It is not possible to accept the contention that the petitioner did not act on the Will dated 29.08.1997 after the death of his father. The third objection has also to be rejected.

42. At this stage, reference may be had to the judgment of the

Hon‟ble Supreme Court in the case of Gurdev Kaur Vs. Kaki (supra) where in paragraphs 77-78 the court held as follows:

77. ....After all, a Will is meant to be an expression of his desire and therefore, may result in disinheritance of some and grant to another. In the instant case, wife of the testator Bhagwan Kaur alone had lived with the deceased and only she had looked after him throughout his life. The other daughters were all happily married a long time ago and in their weddings the testator had spent huge amount of money. In his own words, he had spent more than what they would have got in their respective shares out of testator's property.

78. If a Will appears on the face of it to have been duly executed and attested in accordance with the requirements of the Statute, a presumption of due execution and attestation applies.

In my view, the Will appears on the face of it to be duly executed and attested in accordance with the requirement of statute.

43. One cannot help noticing the conduct of Mr.Virumal Motwani. After the filing of the present petition he has propounded a Will dated 25.03.2000 allegedly executed by Shri Pritam Das as the last will and testament. He has also filed a Probate being Petition No.47/2011 seeking probate of the said Will on 26.05.2011. The Probate Petition has been filed without an affidavit from any of the attesting witnesses. No evidence of any attesting witness has also been led. Accordingly, at the time of arguments, the learned senior counsel appearing for him had submitted that respondent No.6 does not press the said petition 47/2011. This conduct of propounding a Will as a

counter blast to the present Probate Petition and then not pursuing the same only indicates an attempt of the above respondent No.6 to delay the present proceedings and an attempt to confuse the facts.

44. Accordingly, I hold that the Will has been legally and validly executed. The surrounding circumstances do not in any way throw any suspicion on the execution of the Will. The Will is duly registered before the Office of Sub-Registrar. It has been witnessed by one of the daughters of the Testator who herself is not a beneficiary of the Will. All the four daughters have supported the Will. The sons, who are settled abroad, as per evidence placed on record were not regularly in touch with the father, are the ones who are excluded and who are objecting. There are no suspicious circumstances that would throw doubt on the validity and legality of the said Will. Hence, issues No. 1 and 2 are answered in the affirmative, namely, that late Sh.Pritam Das executed a legal and valid Will dated 29.08.1997 which was his last testament.

45. The last issue that now survives is Issue No. (iii) i.e. whether the present petition is barred by limitation. It has been argued by learned Senior Counsel for respondents No.6 to 8 relying upon the judgment of the Hon‟ble Supreme Court in the case of Kunvarjeet Singh Khandpur vs. Kirandeep Kaur and Ors., (2008) 8 SCC 463 that Article 137 of the Schedule to the Limitation Act is applicable to probate petition. It is argued that Late Sh. Pritam Das died on 12.04.2000 and the present probate petition filed in 2008 is hopelessly barred by limitation.

46. Learned counsel for the petitioner has, however, made two submissions in this regard. She has submitted that the limitation would start only when some of the family members deny the authenticity and validity of the Will. It is urge that this denial came when respondent No.6 wrote a communication to DDA on 19.01.2006. It is admitted that at that time, for the first time the authenticity and the validity of the Will was challenged. Hence, it is stated that the limitation would run from that date when respondent No.6 wrote the said letter to DDA in 2006. Hence, it is urged that the present probate petition which was filed in the year 2008 is within the period of limitation. It is next urged that even otherwise the petitioner has been mostly out of the country as for some time he was settled abroad. Hence, in term of Section 15(5) of the Limitation Act the period during which the petitioner was abroad would have to be detected.

47. As far as the second contention of the petitioner is concerned the same is misconceived. Section 15(5) of the Limitation Act reads as follows:-

"15 xxx (5). In computing the period of limitation for any suit the time during which the defendant has been absent from India and from the territories outside India under the administration of the Central Government, shall be excluded."

48. Hence the period of limitation is to be extended only when the defendant is absent from India. Section 15(5) of the Limitation Act would have no application to the facts of the present case.

49. As far as the period for computation of limitation is concerned, reference may also be had to the judgment of the Division Bench of this

High court in the case of Pratap Singh vs. State, 2010(173) DLT 132. Relevant portion of this judgment reads as follows:-

"4. The learned Single Judge by the impugned order relying on the decision of a Division Bench of this Court in S.S. Lal vs. Vishnu Mitter Govil 112 (2004) DLT 877, held that the right to apply for a Probate or a letter of administration was a recurring one and thus the petition was not barred by limitation. The decision rendered in S.S. Lal vs. Vishnu Mitter Govil (Supra), has been overruled by the Hon'ble Supreme Court in Kunvarjeet Singh Khandpur v. Kirandeep Kaur and Ors. (2008) 8 SCC 463 and is, thus, no more a good law. The Hon'ble Supreme Court in Kunvarjeet Singh Khandpur v. Kirandeep Kaur and Ors. (Supra) and Krishan Kumar Sharma v. Rajesh Kumar Sharma (2009) 11 SCC 537, has held that Article 137 of the Limitation Act, 1963 applies to a petition for grant of probate and letters of administration as well.

5. As regards when the right to apply accrues, one of us (Vikramajit Sen, J.) in Pamela Manmohan Singh v. State and others, 83 (2000) DLT 469 held that the period of three years would surely commence at least from the date on which the legatee to a Will could be justifiably ascribed with the knowledge that the Will on which his claim is founded is likely to be disputed by other persons, especially the natural heirs of the testator. The relevant extract from the decision are as under:-

3. xxxx

4. xxxx

5. xxxx

6. xxxx

7. In a decision of a Division Bench rendered in Hari Narain Vs. Subhash Chander MANU/PH/0163/1985, the argument that no limitation had been prescribed in filing of an application for revocation of a probate granted under the Succession Act was referred to as an "astounding proposition of law put forth by the learned counsel for the Applicant". After discussing the law as enunciated by the Supreme Court, it was held by the learned Division Bench that Article 137 of the Limitation Act, 1963 would apply to any petition or application filed in a Court

where no other period of limitation had been prescribed. After careful consideration I would extend the ratio of this decision mutates mutants to also cover cases pertaining to the grant of probate, where it can be fairly assumed that the Petitioner had knowledge that the Will was likely to be disputed. Article 137 of the Limitation Act, 1963 reads as under:

        Description of suit           Period     of   Time      from
                                      Limitation      which period
                                                      begins to run
                                                      when the right
                                                      to       apply
                                                      accrues.
        137.Any other application     Three years     When the right
        for which no period of                        to         Apply
        limitation is provided                        accrues.
        elsewhere     in     this
        Division.

"The period of three years would surely commence at least from the date on which a legatee under a Will could be justifiably ascribed with the knowledge that the Will on which his claim is founded is likely to be disputed by other persons especially the natural heirs of the Testatrix. By way of adumbration, hypothetically, a Will may have been executed in Delhi in 1950. The bequests made and dealt with therein may not have come into any dispute for several decades. It could be that some legatees were in possession of the properties with the tacit permission or approval of the other legatees, which approval was subsequently withdrawn. So long as the rights of any particular legatee are to emanate and flow from the Will, probate proceedings ought to be filed at least within three years from this conjectured withdrawal of permission. That would then be the latest date on which "the right to apply accrues".

This would be the most appropriate and meaningful interpretation given to the words "when the right to apply occurs". The applicant in the present case must surely have

been well aware that the Will would be indefatigably contested. His right to apply surely accrued on the death of the alleged Testatrix Dr. Raseel Kohil on 11.10.1987. Yet he chose not to initiate probate proceedings, and over a decade has passed thereafter."

50. Reference may also be had to the judgment of the Hon'ble Supreme Court in the case of Kunvarjeet Singh Khandpur vs Kirandeep Kaur & Ors. (supra) where the Hon‟ble Court recorded with approval the submissions of the counsel for the appellant that the crucial expression "right to apply" in terms of Article 137 of the Limitation Act would mean that when a dispute about the genuineness of the Will arises.

51. In my view, first time an objection was raised to the Will was when respondent No.6 wrote a communication to DDA on 19.01.2006. DDA responded vide its letter dated 24.02.2006 stating that no steps would be taken until the family settlement or probate of the Will is placed on record. Reference may also be had to the cross-examination which took place on 24.09.2012 of respondent No.6, relevant portion of which reads as follows:

"Q. When and how did you come to know about the mutation of the property at Janak Puri, in terms of the Will?

Ans. Upon service of the notice from DDA, calling upon me to file objections, if any, against the mutation.

I have not placed the same on record. (Vol. I can bring the same, if directed). I am not able to recollect the exact date of the notice. (Vol. As far as I am able to recall, it was served sometime in 2003 or 2004)."

52. Hence, even as per respondent No.6 Sh. Virumal Motwani, though he was served with notice for carrying out mutation by DDA in 2003 or 2004, a

response has been made by him only on 19.01.2006 informing DDA not to act on the basis of the Will, which has been propounded by the petitioner. He accepts this in his affidavit by way of evidence.

53. The present petition has been filed within three years of the said date i.e. 19.01.2006, which is the first time that respondent No.6 rejected the Will in question. Accordingly, I hold that the present probate petition is not barred by limitation.

54. In view of the above and having regard to the facts and circumstances of the present case, it is ordered that the probate in respect of Will dated 29.08.1997 of late Shri Pritam Das (Ex.PW-1/1) be granted in favour of the petitioner on his depositing the requisite court fee and on his furnishing the administration bond, for due administration of the estate of the deceased, in accordance with his wishes.

55. Accordingly, the present petition is allowed.

56. The petition is disposed of. The pending applications, if any, also stand disposed of.

( JAYANT NATH ) JUDGE JANUARY 31, 2014/ Rb/n/„raj'