Krishna Kumar Sharma
Vs. Rajesh Kumar Sharma  637 (27 March 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1967 OF 2009 (Arising
out of SLP (C) No.16110 of 2007) Krishna Kumar Sharma ..Appellant Versus Rajesh
Kumar Sharma ..Respondent
Dr. ARIJIT PASAYAT,
1. Leave granted.
2. Challenge in this
appeal is to the order passed by the Delhi High Court which by the impugned
order allowed the appeal filed by the respondent.
3. Background facts
in a nutshell are as follows:
propounder of the registered will dated 13th July, 1989 executed by his mother,
has locked horns with his step brother, Krishan Kumar Sharma, the appellant
herein Smt. Sneh Prabha Sharma, the testatrix, and her husband Ram Mohan Sharma
were married twice.
Respondent is the son
of testatrix and Ram Mohan Sharma. Appellant is the son from the first wife of
Ram Mohan Sharma. The respondent's case is this that the will dated 13th July,
1989 was made by the above said testatrix in sound disposing mind on 13th July,
1989 and it was got registered on 11th September, 1989. Smt. Sneh Prabha Sharma
died on 9th July, 1990. Except the appellant, none of the other siblings of the
appellant contested the petition moved by the appellant under Section 276 of
the Indian Succession Act, 1925 (in short the `Act').
The basic question
before the High Court was whether Article 137 of the Indian Limitation Act,
1963 (in short the `Limitation Act') applies to the facts of the present case.
The High Court relied upon the judgments of Delhi High Court in S.S. Lal v.
Vishnu Mitter Govil [112 (2004) Delhi Law Times 877 (DB)] and in Kanwal
Malhotra v. State [125 (2005) Delhi Law Times 281] to hold that Limitation Act
has no application to proceedings seeking for probate.
4. Learned counsel
for the appellant submitted that the interpretation placed by the High Court is
not correct. The primary question that needs reconsideration is whether Article
137 of the Limitation Act is applicable.
It appears that
certain other aspects were considered by the High Court to which reference
shall be made subsequently.
5. In the Kerala
State Electricity Board, Trivandrum v. T.P. Kunhaliumma [1976 (4) SCC 634] it
was inter alia observed as follows:
alteration of the division as well as the change in the collocation of words in
Article 137 of the Limitation Act, 1963
compared with Article 181 of the 1908 Limitation Act shows that applications
contemplated under Article 137 are not applications confined to the Code of
Civil Procedure. In the 1908 Limitation Act there was no division between
applications in specified cases and other applications as in the 1963 Limitation
Act. The words "any other application" under Article 137 cannot be
said on the principle of ejusdem generis to be applications under the Civil
Procedure Code other than those mentioned in Part I of the third division. Any
other application under Article 137 would be petition or any application under
any Act. But it has to be an application to a court for the reason that
Sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed
period when court is closed and extension of prescribed period if applicant or
the appellant satisfies the court that he had sufficient cause 3 for not
preferring the appeal or making the application during such period.
22. The conclusion we
reach is that Article 137 of the 1963 Limitation Act will apply to any petition
or application filed under any Act to a civil court. With respect we differ from
the view taken by the two-judge bench of this Court in Athani Municipal Council
case and hold that Article 137 of the 1963 Limitation Act is not confined to
applications contemplated by or under the Code of Civil Procedure. The petition
in the present case was to the District Judge as a court. The petition was one
contemplated by the Telegraph Act for judicial decision. The petition is an application
falling within the scope of Article 137 of the 1963 Limitation Act."
In terms of the
aforesaid judgment any application to Civil Court under the Act is covered by
Article 137. The application is made in terms of Section 264 of the Act to the
District Judge. Section 2(bb) of the Act defines the District Judge to be Judge
of Principal Civil Court.
6. Further in S.S.
Rathore v. State of M.P. [1989(4) SCC 582] it was inter-alia stated as follows:
counsel placed before us the residuary Article 113 and had referred to a few
decisions of some High Courts where in a situation as here reliance was placed
on that article. It is unnecessary to refer to those decisions as on the
authority of the judgment of this Court in the case of Pierce Leslie & Co.
Ltd. v. Violet Ouchterlony Wapshare it must be held that Article 4 of the Act
of 1963, corresponding to Article 120 of the old Act, is a general one and
would apply to suits to which no other article in the schedule applies."
7. Article 137 of the
Limitation Act reads as follows:
Description of application: Any other application for which no period of
limitation is provided elsewhere in the Division.
Period of Limitation:
Three Years Time from which period begins to run:
When the right to
expression in the petition is "right to apply". In view of what has
been stated by this Court, Article 137 is clearly applicable to the petition
for grant of Letters of Administration. As rightly observed by the High Court
in such proceedings the application merely seeks recognition from the Court to
perform a duty because of the nature of the proceedings. It is a continuing
right. The Division Bench of the Delhi High Court referred to several
decisions. One of them was S. Krishnaswami and etc. etc. v. E. Ramiah (AIR 1991
Madras 214). In para 17 of the said judgment it was noted as follows:
"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
8. Though the nature
of the petition has been rightly described by the High Court, it was not
correct in observing that the application for grant of probate or letters of
Administration is not covered by Article 137 of the Limitation Act. Same is not
correct in view of what has been stated in The Kerala State Electricity Board's
reference was made to a decision of the Bombay High Court's case in Vasudev
Daulatram Sadarangani v Sajni Prem Lalwani (AIR 1983 Bom.268).
Para 16 reads as
Mr. Dalapatrai's contention, I summarise my conclusions thus:-- (a) under the Limitation
Act no period is advisedly prescribed within which an application for probate,
letters of administration or succession certificate must be made;
(b) the assumption
that under Article 137 the right to apply necessarily accrues on the date of
the death of the deceased, is unwarranted;
(c) such an
application is for the Court's permission to perform a legal duty created by a
Will or for recognition as a testamentary trustee and is a continuous right
which 7 can be exercised any time after the death of the deceased, as long as
the right to do so survives and the object of the trust exists or any part of
the trust, if created, remains to be executed;
(d) the right to
apply would accrue when it becomes necessary to apply which may not necessarily
be within 3 years form the date of he deceased's death.
(e) delay beyond 3
years after the deceased's death would arouse suspicion and greater the delay,
greater would be the suspicion;
(f) such delay must
be explained, but cannot be equated with the absolute bar of limitation; and
(g) once execution and attestation are proved, suspicion of delay no longer
10. These aspects
were highlighted in Kunvarjeet Singh Khandpur v. Kirandeep Kaur & Ors.
(2008 (8) SCC 463).
11. Since other
questions were involved we remit the matter to consider the matter afresh in
view of what has been stated in Kunvarjeet's case (supra).
12. The appeal is
allowed to the aforesaid extent.
(Dr. ARIJIT PASAYAT)
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