Delhi High Court
Pawan Kumar Sharma vs Neelam Sharma & Anr. on 22 January, 2019
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Order: 22.01.2019
+ F.A.O. No.435/2018
PAWAN KUMAR SHARMA ..... Appellant
Through: Mr. M. Hasibuddin, Advocate.
Versus
NEELAM SHARMA & ANR. ....Respondents
Through: Mr. Prateek K. Chadha, Advocate for R-2.
CORAM:
HON'BLE MR. JUSTICE VINOD GOEL
C.M. Nos.38072-38073/2018 (for exemption)
Allowed, subject to all just exceptions.
The applications stand disposed of.
C.M. No.38071/2018 (for delay)
For the reasons justified in the application, delay of 41 days in
filing the appeal is condoned. The application is disposed of
accordingly.
F.A.O. No.435/2018
1. The impugned order dated 01.05.2018 passed by the learned
District & Sessions Judge, Head Quarters, Delhi, dismissing the
application of the appellant, being M. No.5/17 under Section 263 of
the Indian Succession Act, 1925 ('IS Act') seeking revocation of the
probate of Will dated 10.07.2002 granted by judgment dated
09.01.2006 in Probate Case No.5/2005, is the subject-matter of
challenge in this appeal. In fact by the judgment dated 09.01.2006,
letter of administration was granted for the Will dated 10.07.2002.
2. The facts of the case are that one Hari Krishan Sharma was the
owner of property No.C-126, Mansarovar Garden, New Delhi and
property No.WZ-336, Village Naraina, New Delhi, apart from other
movable properties. He executed a Will on 10.07.2002 and bequeathed
the House No. WZ-336, Village Naraina, New Delhi, in favour of his
wife Smt.Shanti Devi and property No.C-126, Mansarovar Garden,
New Delhi, in favour of his daughter Neelam Sharma. The testator
died on 03.12.2003. By judgment dated 09.01.2006, letter of
administration in respect of Will was granted by the learned District
Judge, Delhi on the petition filed by Smt. Neelam Sharma. After
about ten years, the appellant filed an application under Section 263 of
IS Act for revocation of the order dated 09.01.2006 on the ground that
the deceased died issueless leaving behind his widow Smt. Shanti
Devi and that he did not execute any Will. He also claimed that he
came to know about the beneficiary in the year 2014 and gathered
information about the falsity of the Will. By the impugned order,
learned District & Sessions Judge found that the application is barred
by time.
3. Learned counsel for the appellant contends that the period of
limitation shall start from the date of knowledge and not from the date
of the judgment.
4. Admittedly, there is no provision under the Limitation Act or
under the IS Act specifying the period of limitation for filing an
application seeking revocation of grant of probate or letter of
administration. On a similar point raised, in Lynette Fernandes vs.
Gertie Mathias (since deceased) by LRs; (2018) 1 SCC 271 Hon'ble
Supreme Court held that the limitation for filing application seeking
revocation of grant of probate will be covered by Article 137 of the
Limitation Act which is the residuary Article and prescribes a period
of limitation for three years. The Hon'ble Supreme Court further held
that 'one must keep in mind that the grant of probate by a competent
court operates as a judgment in rem and once the probate to the will is
granted, then such probate is good not only in respect of the parties to
the proceedings, but against the world. If the probate is granted, the
same operates from the date of the grant of the probate for the
purpose of limitation under Article 137 of the Limitation Act in
proceedings for revocation of probate.' Similarly in Kunvarjeet Singh
Khandpur vs. Kirandeep Kaur & Ors.; (2008) 8 SCC 463 the Hon'ble
Supreme Court held that the period of three years for institution of a
petition for grant of probate commences from the point in time when
the right to apply accrues to the petitioner.
5. In view of the judgment of the Hon'ble Supreme Court in
Lynette Fernandes (supra), the judgment granting letter of
administration dated 09.01.2006 operates from that day itself and the
right to sue accrues to the appellant on that day itself since the
judgment operates in rem. So if a revocation is sought for grant of
probate or letter of administration, the period of three years should
commence, from the date when the probate or letter of administration
is granted. Since the judgment dt. 09.01.2006 is a judgment granting
letter of administration in rem, the limitation of three years shall
commence from 09.01.2006 and not from any date beyond that.
6. I do not find any infirmity and illegality in the impugned order
dismissing the application of the appellant for revocation of the letter
of administration being barred by time.
7. In view of this discussion, the appeal is dismissed.
(VINOD GOEL)
JUDGE
JANUARY 22, 2019
'AA'
