Jharkhand High Court
Sanjay Sharma @ Sanjay Bhardwaj vs Krishnadhan Khaware on 28 April, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M. A. No. 153 of 2012
Sanjay Sharma @ Sanjay Bhardwaj .... .... Appellant
Versus
1. Krishnadhan Khaware
2. Navindhan Khaware
3. Rajnandan Khaware
.... .... Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellant : Mr. Prashant Pallav, Advocate
For the Respondents : M/s Indrajit Sinha, Vijay Shankar Jha
& Birendra Kumar, Advocates
C.A.V. ON 22.04.2022 PRONOUNCED ON 28 /04/ 2022
1. The instant appeal has been preferred by the legatee of the
WILL Sanjay Sharma @ Sanjay Bhardwaj under Section 299 of the
Indian Succession Act against the order dated 31.07.2012 passed in
Probate Case No. 05 of 2005 by the District Judge, Deoghar whereby and
whereunder, the probate case has been dismissed under Order VII Rule 11
of C.P.C.
2. Background facts leading to the present appeal is that executor
of the WILL Bhudeo Prasad Singh filed the application for probate of the
WILL purported to be made by one Srilal Singhania on 15.04.1995 in
respect of the schedule property in favour of the present appellant Sanjay
Sharma. Srilal Singhania died on 7.06.95. The executor instituted Probate
Case No. 05 of 2005 under Section 222 read with 276 of the Indian
Succession Act on 31.8.05 in which respondent nos. 1 to 3 appeared in the
court below and contested the probate application by filing their objection.
Subsequently, the executor fell ill as he was suffering from Cancer and,
therefore, the present appellant, beneficiary of the WILL filed an
intervention petition on 11.01.2010 on ground of renunciation of
executorship with specific prayer for converting the probate case into that
Letter of Administration. The respondents- Objectors contested the
petition on the ground that the probate case cannot be converted into
Letter of Administration case in view of the provision under Section 232
of the Indian Succession Act. During the pendency of the petition, the
applicant/executor Bhudeo Prasad Singh died in the year 2010 and the
appellant filed another petition after his death for its conversion to Letter
of Administration. In the meantime, the Objectors filed a petition dated
25.02.2011 under Order VII Rule 11 of C.P.C. for rejecting the probate
case dated 31.08.2005 on the ground that it was barred by limitation under
Article 137 that the propounder of the alleged WILL has died on
07.06.1995 and the instant probate case was filed after ten years of his
death. Considering the grounds taken the plaint was rejected. Hence the
instant appeal.
3. For better appreciation it will be desirable to set out the
chronology of events which is as follows:
i. The unregistered will is claimed to be made by Srilal Singhania
on 15.4.95.
ii. Srilal Singhania dies on 17.6.95.
iii. This ten years period is to be taken into consideration. During
this period is of utmost importance.
iv. The probate application is filed on 31.8.2005 by the executor of
the WILL.
v. The probate application is contested by the opposite parties by
filing written statement (objection) dated 19.5.2006. The
grounds of objection include averment that the said will was
forged and fabricated document. Srilal Singhania was not
competent to execute the WILL.
vi. Legatee Sanjay Sharma files application on 11.1.10 to convert
the probate application into that for grant of letters of
administration.
vii. The objectors contest the application by filing a rejoinder on
19.2.10 inter alia on the ground that after the death of Srilal
Singhania, his wife Laxmi devi Singhania executed registered
power of attorney dated 8.8.2005 for sale of the suit property
and it was sold to the objectors in entirety.
viii. Wife of the testator Laxmi Devi Singhania executes a registered
deed of sale with respect to the suit property in favour of the
opposite parties on 12.9.2005.
ix. Legatee Sanjay Sharma files a petition on 26.8.2010 about the
death of executor Bhudeo Prasad Singh.
x. The objector files petition under Order 7 Rule 11 for rejection
of application for probate on 5.2.11 which is allowed vide the
impugned order dated 31.7. 12.
4. Case of the applicant/executor is that Srilal Singhania S/o Late
Madan Lal Singhania resident of Seth Surajmull Jalan Road, Deoghar
executed his last will on 15.4.95 in respect of half of his property fully
detailed in the schedule which is a double storied building having an area
of four decimals commonly known as Tirtha Bishram in favour of the
legatee Sanjay Sharma. The petitioner was appointed as executor as he
was a close associate of the testator and was in extremely good as well as
friendly terms with the deceased. The testator had died issueless as he had
a son who died in childhood and headed out who also died unmarried. At
the time of his death as well as at the time of execution of the will he was
issueless. The legatee as well his father used to assist the testator in
performing religious ceremonies/rites and rituals and it was his utmost
desire to make some arrangement by granting a portion of the property in
his favour.
5. Objectors contested the application for grant of probate on the
ground that the said will was forged, fabricated and antedated document to
lay claim over the suit property. Srilal Singhania was not competent to
execute the alleged will as he was not the absolute owner of the suit
property. His wife Laxmi Devi and daughter Lalita Kumari also had their
share in it as per the decision of Hon'ble Calcutta High Court in Award
Case no. 134 of 1976. Assertion made in para two of the probate
application that petitioner was a close associate of the testator and was in
friendly terms with him is far from truth. The testator was most reputed
businessman of Deoghar, whereas the executor was working under him as
a gatekeeper and was a muscleman. The legatee was a land mafia and had
no connection with the testator. No sooner Laxmi Devi Singhania
expressed her intention to dispose of the schedule property known as
Tirtha Vishram and appointed Sanjayanda Jha as power of attorney holder
for the said purpose, conspiracy was hatched to lay claim over the
schedule property on the strength of manufactured document. Being tired
of this state of affair as well as of defaulting tenants she sold the suit
property to the opposite parties vide registered deed of sale dated
12.9.2005 in pursuance to the agreement dated 8.8.2005.
6. The probate application has been rejected under Order 7 Rule
11(d) on the ground that Article 137 of the Limitation act, 1963 prescribes
a period of three years for presentation of an application from the date
when the right to apply accrues. The propounder is under obligation to
satisfy the court that he had no knowledge about execution of will. In the
instant case the executor had full knowledge of the will and he has offered
no explanation for the delay in the plaint. Hon'ble Supreme Court in 2008
SCR (Civil) 142 held that Section 3(1) of the Limitation act and Order 7
Rule 11(d) casts a mandate to reject the plaint when suit appears to be
barred by any law. In this case the probate application was filed after 10
years of its execution which was held to be hopelessly barred by
limitation.
7. The instant appeal has been filed on the ground that the learned
court below has misdirected himself while considering the provision of
the Limitation Act in application under probate case. It is submitted that
the limitation applies in filing of the probate application but the date starts
running from the date of death but not from the date when the cause of
action accrues. The right of legatee commences accrues only when the
executor perform his duty or upon his death and therefore the petition was
very much within time. The learned Court has wrongly applied the
decision reported in 2008 SCR (Civil) 142 that only in cases of
withdrawal of probate case into L.A. case can be filed.
8. The WILL on its face appears to be suspicious. There appears to
be no cogent and convincing reason for the testator to execute a WILL in
favour of a stranger during the lifetime of his wife and daughter with
respect to a valuable piece of urban property in which the wife and
daughter had share as per the judgment of the Calcutta High Court in
Award Case no. 134 of 1976. The delay of 10 years in presentation of
application for probate makes it even more suspect. The probate Court has
to do justice to the departed soul and cannot allow a probate application
when it is clouded with suspicion.
9. I find force in the submission made by learned counsel for the
respondent that the original probate case was itself time barred. It is
submitted that there is specific period of limitation for filing the probate
application of three years under Article 137 of the Limitation Act as held
by the Hon'ble Apex Court in (2020) 17 SCC 284 (Ramesh Nivrutti
Bhagwat Vs. Dr. Surendra Manohar Parakhe) in which the Hon'ble
Court followed the earlier ratio laid down in Kunvarjeet Singh Khandpur
Vs. Kirandeep Kaur (2008) 8 SCC 463. It has been held that the
Succession Act, 1925 does not prescribe a specific period of limitation for
the grant of probate, or for moving an application for cancellation of
probate or letters of administration. The residuary entry Article 137 of the
Act, which covers proceedings for which no period of limitation is
stipulated in the Act, provides for a three-year period of limitation. Article
137 reads as follows:
"Description Period of Time from which
limitation period begins to run
137. Any other Three years When the right to apply
application for which no accrues."
period of limitation is
provided elsewhere in
this Division.
Right to apply for probate commences only after the death of
the testator. Here in the present case the testator died on 17.6.1995,
whereas the probate application has been filed on 31.8.2005. Therefore,
the original probate application was itself barred by limitation.
I do not find any infirmity in the impugned order which is,
accordingly, affirmed.
The appeal is dismissed with cost.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 28th April, 2022
AFR / AKT
