SAMEER KAPOOR AND ANOTHER versus THE STATE THROUGH SUB-DIVISION MAGISTRATE SOUTH, NEW DELHI AND OTHERS on 29 April 2019

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SUPREME COURT REPORTS

[2019] 6 S.C.R.

ASAMEER KAPOOR AND ANOTHER

v.

THE STATE THROUGH SUB-DIVISION MAGISTRATE SOUTH,NEW DELHI AND OTHERS

B(Civil Appeal No. 10482 of 2013)

APRIL 29, 2019

[L. NAGESWARA RAO AND M.R. SHAH, JJ.]

Succession Act, 1925:

Cs. 276 – Applications for grant of probate or letters ofadministration – Applicability of Art. 137 – Held: Art. 137 isapplicable to the applications for grant of probate or letters ofadministration – Limitation Act, 1963 – Art. 137.

ss. 276 and 228 – Application under, for probate or for letters Dof administration – If barred by limitation – Held: In a proceeding,or in an application filed for grant of probate or letters ofadministration, no right is asserted or claimed by the applicant –Application for grant of probate or letters of administration is forthe court’s permission to perform a legal duty created by a Will or for recognition as a testamentary trustee – Even if the Will is probatedEby any court mentioned in s. 228, right to get the letters ofadministration is a continuous right which can be exercised anytime, as long as the right to do so survives and the object of thetrust exists or any part of the trust, if created, remains to be executed– On facts, probate case filed by respondent no.2 for letters ofFadministration u/s. 228/276 not barred by limitation – After passingaway of the testator, in 2000, the appellants started intermeddlingwith properties bequeathed to respondent no.2, situated in Delhiand, thus, he was compelled to apply for letters of administration –Cause of action started from the date on which the appellants startedintermeddling with the properties bequeathed to respondent no.2 –GThus, the application for letters of administration not barred bylimitation – High Court rightly refused to reject the plaint in exerciseof powers u/Or. VII r. 11 – Limitation Act, 1963 – Art. 137.

Dismissing the appeal, the Court

HELD: 1.1 Article 137 of the Limitation Act, 1963 shall beapplicable to the applications for grant of probate or letters ofadministration. Application under Section 276 and 228 of theSuccession Act shall be covered by Article 137. [Para 10, 11][1113-F; G]

Kunvarjeet Singh Khandpur v. Kirandeep Kaur(2008) 8 SCC 463 : [2008] 5 SCR 1057 ; KrishanKumar Sharma v. Rajesh Kumar Sharma (2009) 11 SCC537 – relied on.

1.2 As per Article 137 of the Limitation Act, the period oflimitation prescribed is three years and the three years begin torun when the ‘right to apply’ accrues. The crucial expressionunder Article 137 of the Limitation Act is ‘right to apply’.[Para 12.1][1114-B]

1.3 When an application under Section 276 of the Act issubmitted for probate or for letters of administration with Will, ifany objection is raised by any body with respect to execution ofthe Will, in that case, the applicant is required to prove the Willand thereafter the Will shall be probated and the court may passan order for letters of administration. However, in a case where aWill has been proved or deposited in a court of competentjurisdiction situated beyond the limits of the State, whether withinor beyond the limits of India, in that case, as provided underSection 228 of the Act, when a properly authenticated copy of theWill is produced, the letters of administration may be granted infavour of such person. Meaning thereby, in such a situation, theWill is not required to be proved again and it shall be conclusive.Therefore, Section 228 of the Act shall be an enabling provisionand it confers an additional right to apply for letters ofadministration on the basis of such authenticated copy of the Will.Therefore, as rightly observed by the Single Judge and theDivision Bench that Section 228 is akin to Section 276 of the Act.[Para 14.1][1115-E-H; 1116-A]

1.4 In a proceeding, or in an application filed for grant ofprobate or letters of administration, no right is asserted or claimed A

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Aby the applicant. The applicant only seeks recognition of the courtto perform a duty. Probate or letters of administration issued bya competent court is conclusive proof of the legal characterthroughout the world. That the proceedings filed for grant ofprobate or letters of administration is not an action in law but it isan action in rem. An application for grant of probate or letters ofBadministration is for the court’s permission to perform a legalduty created by a Will or for recognition as a testamentary trusteeand is a continuous right which can be exercised any time afterthe death of the deceased, as long as the right to do so survivesand the object of the trust exists or any part of the trust, if created,Cremains to be executed. Therefore, even if the Will is probatedby any court mentioned in Section 228 of the Act, right to get theletters of administration is a continuous right which can beexercised any time, as long as the right to do so survives and theobject of the trust exists or any part of the trust, if created, remains to be executed. [Para 17][1118-B-D]D1.5 The submission on behalf of the appellants that ProbateCase No. 15/2001 filed by respondent no.2 for letters ofadministration under Section 228 of the Act, read with Section276 of the Act is barred by law of limitation, cannot be accepted.

Even in the plaint, it is specifically pleaded that after passingEaway of the father of the parties in the year 2000, the appellantsstarted intermeddling with properties bequeathed to respondentno.2, which were situated in Delhi and, therefore, left with nooption, he was compelled to apply for letters of administration.Therefore, even as per the pleadings in the application, the causeFof action started from the date on which the appellants startedintermeddling with the properties bequeathed to respondent no.2,after passing away of the father of the parties in the year 2000.Therefore, in the facts and circumstances of the case, both theSingle Judge and the Division Bench rightly refused to rejectthe application in exercise of powers under Order VII Rule 11GCPC. In the facts and circumstances of the case, it cannot be saidthat the application for letters of administration was clearly barredby the law of limitation which was required to be rejected inexercise of powers under Order VII Rule 11(d) CPC. The viewtaken by the High Court is concurred with. [Para 18][1118-F-H;1119-A-C]H

SAMEER KAPOOR v. STATE THR. SUB-DIVISIONMAGISTRATE SOUTH, NEW DELHI

Kunvarjeet Singh Khandpur v. Kirandeep Kaur (2008)8 SCC 463 : [2008] 5 SCR 1057 – relied on.

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Estate of Late Shri Gurcharan Dass Puri AIR 1987P&H 122 ; Ramanand Thakur v. Parmanand ThakurAIR 1982 Patna 87 ; Vasudev Daulatram Sadaranganiv. Sajni Prem Lalwani AIR 1983 Bom. 268 ;S. Krishnaswami v. E. Ramiah AIR 1991 Mad. 214 –referred to.

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Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10482of 2013

From the Judgment and Order dated 16.01.2009 of the HighCourt of Delhi at New Delhi in Appeal bearing No. F.A.O.(OS) 11/2009

Divyakant Lahoti, Ms. Amrita Grover, Parikshit Ahuja, Ms.Praveena Bisht, Advs. for the Appellants.

Shyam D.Nandan, Siddharth Bambher, K. Krishna Kumar, BalrajDewan, M. A. Krishna Moorthy, Ankit S., Advs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J. 1. Feeling aggrieved and dissatisfied with theimpugned judgment and order passed by the High Court of Delhi atNew Delhi in F.A.O(OS) No. 11 of 2009, by which a Division Bench ofthe High Court has dismissed the said appeal and has confirmed theorder passed by the learned Single Judge refusing to reject the plaintunder Order VII Rule 11 of the CPC, the original defendants havepreferred the present appeal.

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A2. The brief facts leading to this appeal are, that one Smt. KailashKapoor, a permanent resident of England, executed a will dated16.05.1990 bequeathing thereunder all her assets to two of her grand-children. That the said Smt. Kailash Kapoor died in England on 10.09.2001.According to the appellants, they acted upon the said will and disposedof all the immovable properties of the aforesaid testatrix, possessed inBIndia between 6.9.2000 to March, 2001. That after the death of lateSmt. Kailash Kapoor, the High Court of Justice, District Probate Registryof Birmingham, England and Wales issued a probate in respect of thesaid will vide order dated 21.11.1997. It appears that thereafter in theyear 2001, respondent no.2 herein, at whose instance the will wasCprobated in England, applied for letters of administration for propertysituated in Delhi by filing a Testamentary Case under Section 228 of theIndian Succession Act (hereinafter referred to as the ‘Act’) beingTestamentary Case No. 15 of 2001.

2.1 That the appellant herein filed I.A. No. 13895 of 2006 beforeDthe learned Single Judge of the High Court, praying to reject the plaintunder Order VII Rule 11 of the CPC on the ground that the saidTestamentary Case under Section 228 of the Act, considering Article137 of the Limitation Act, 1963, is barred by the law of limitation. It wasthe case on behalf of the appellants that though no limitation would applyseeking grant of probate so long as a person has not approached theEcourt and will is probated, however, once the court at England and Waleshad been approached and a probate had been granted, no petition forletters of administration could have been filed after a lapse of a period ofthree years. The said application was opposed by respondent no.2 herein– the original applicant. It was submitted that Article 137 of the Limitation FAct would not apply.

3. The learned Single Judge vide order dated 24.09.2008 dismissedthe said application and refused to reject the plaint under Order VIIRule 11 of the CPC by observing that Section 228 of the Act is akin toprovisions of Section 222 and 276 of the Act and, therefore, when thereGis no period of limitation prescribed for submitting an application underSection 222 and/or Section 276 of the Act, for submitting an applicationunder Section 228 of the Act, the period of limitation shall not be applicable.Therefore, the learned Single Judge was of the opinion that Article 137of the Limitation Act shall have no application.

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4. Feeling aggrieved and dissatisfied with the order passed by thelearned Single Judge rejecting the application to reject the plaint underOrder VII Rule 11 of the CPC, the appellants herein approached theDivision Bench of the High Court by way of F.A.O(OS) No. 11 of 2009.By the impugned judgment and order, the Division Bench of the HighCourt has dismissed the said appeal and has confirmed the order passedby the learned Single Judge rejecting the application under Order VIIRule 11 of the CPC.

5. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the Division Bench of the High Court, the appellants– applicants- original defendants have preferred the present appeal.

6. Mr. Divyakant Lahoti, learned Advocate has appeared for theappellants and Mr. M.A. Krishna Moorthy, learned Advocate hasappeared for respondent no.2.

6.1 Mr. Divyakant Lahoti, learned Advocate appearing on behalfof the appellants has vehemently submitted that in the facts andcircumstances of the case, both the Division Bench as well as the learnedSingle Judge have materially erred in not rejecting the plaint under OrderVII Rule 11 of the CPC.

6.2 It is vehemently submitted by the learned Advocate appearingon behalf of the appellants that Article 137 of the Limitation Act appliesto any petition or application filed under any Act before a Civil Court. Itis submitted that it is not confined to applications contemplated by orunder the Code of Civil Procedure. It is submitted that therefore, Article137 of the Limitation Act shall be applicable to the petitions under theprovisions of the Indian Succession Act also.

6.3 It is vehemently submitted by the learned Advocate appearingon behalf of the appellants that till the will is un-probated, right to applyfor probate is a continuous cause of action, therefore, Article 137 of theLimitation Act shall not be applicable on petitions for grant of probateand letters of administration of a will, filed under Section 276 of the Act.It is submitted that, however, once the will is probated, Article 137 of theLimitation Act will apply to any right which arises on account of probateof will. It is submitted that in such a case the right accrues on the dateof grant of probate, and therefore, the period of limitation will commencefrom such date. In support of the above submissions, learned Advocate AB

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Aappearing on behalf of the appellants has heavily relied upon the decisionof this Court in the case of Kunvarjeet Singh Khandpur v. KirandeepKaur, reported in (2008) 8 SCC 463 (Paragraphs 15 & 16).

6.4 It is submitted by the learned Advocate appearing on behalfof the appellants that in the present case respondent no.2 had applied forBgrant of probate of will dated 16.05.1990, executed by late Smt. KailashKapoor, before the High Court of Justice, District Probate Registry,Birmingham (UK), which was granted by the High Court vide orderdated 21.11.1997. It is submitted that therefore, the right to apply underSection 228 of the Act can be said to have accrued in favour of respondentno.2 on 21.11.1997. It is submitted that whereas respondent no.2 hadCpreferred an application for grant of letters of administration of theaforesaid will dated 16.05.1990 under Section 228 of the Act, by a ProbateCase No. 15/2001, after a lapse of period of three years as prescribedunder Article 137 of the Limitation Act, i.e., on 28.02.2001. It is submittedtherefore the application submitted by respondent no.2 under SectionD228 of the Act is clearly barred by law of limitation and therefore thesame is liable to be rejected considering Order VII Rule 11(d) of theCPC – the applicant’s application being barred by limitation.

6.5 It is further submitted by the learned Advocate appearing onbehalf of the appellants that the learned Single Judge has materiallyEerred in observing that Section 228 of the Act is akin to provisions ofSections 222 and 276 of the Act. It is submitted that while coming to theaforesaid conclusion, the learned Single Judge has not property construedand/or considered the language of the two provisions, i.e., Section 228and Section 276 of the Act. It is submitted that Sections 228 and 276 ofthe Act are totally different and operate under different circumstances.FIt is submitted that an application under Section 228 of the Act would bemaintainable only in a case where a will has been proved/probated anddeposited in a court of competent jurisdiction. It is submitted that thereforea valid application under Section 228 has to be necessarily filed on thebasis of a will that has already been proved, authenticated and probatedGby a competent court in foreign jurisdiction. It is submitted that no suchpre-condition or pre-requisite has been prescribed under Section 276 ofthe Act. It is submitted that unlike Section 228 of the Act, an applicationunder Section 276 of the Act is to be filed on the basis of a will which isun-probated and is being produced before the court for the first time.

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6.6 It is further submitted by the learned Advocate appearing onbehalf of the appellants that even the learned Single Judge has alsomaterially erred in observing that the object and purpose of the twoprovisions is same, i.e., “to seek recognition in respect of will in question”.It is submitted that language of Section 228 of the Act makes it clearthat a will in respect of which letters of administration is sought to begranted under that Section is an already recognized, proved orauthenticated will, unless rebutted. It is submitted that whereas the willin question in an application under Section 276 of the Act is an un-recognised will which is being produced before the court for the firsttime and which is yet to be proved.

6.7 It is further submitted by the learned Advocate appearing onbehalf of the appellants that even the scope of enquiry under Sections228 and 276 of the Act is distinguishable and different. It is submittedthat will under Section 276 of the Act is unauthenticated and yet to beproved. It is submitted that however the will under Section 228 of theAct is already proved and authenticated before a foreign court or acompetent court mentioned in Section 228 of the Act. It is submittedthat therefore the scope of enquiry under Section 228 of the Act is alimited exercise.

6.8 It is further submitted by the learned Advocate appearing onbehalf of the appellants that the Division Bench of the High Court haserred in its reasoning that Probate Case No. 15/2001 is not barred bylimitation because it is the first Probate Petition filed in India, as theearlier Probate proceedings were in the Court of England and Wales. Itis submitted that the Division Bench has materially erred in not properlyappreciating the fact that the administration of an estate in probate is anin rem proceedings. It is submitted therefore the law of limitation isapplicable even if the previous probate proceedings were initiated in aforeign jurisdiction as the same are in rem. It is submitted that therefore,both the learned Single Judge as well as the Division Bench havematerially erred in dismissing the application filed by the appellants hereinunder Order VII Rule 11 of the CPC.

6.9 In support of his above submissions, learned Advocateappearing for the appellants has heavily relied upon the decision of thePunjab and Haryana High Court in the case of Estate of Late ShriGurcharan Dass Puri, reported in AIR 1987 P&H 122, as well as, AB

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Athe decision of the Patna High Court in the case of Ramanand Thakurv. Parmanand Thakur, reported in AIR 1982 Patna 87.

6.10 Making the above submissions and relying upon the aforesaiddecisions of this Court, Punjab & Haryana High Court and Patna HighCourt, it is prayed to allow the present appeal and quash and set asideBthe orders passed by the learned Single Judge and the Division Benchand consequently reject the plaint under Order VII Rule 11(d) of theCPC.

7. The present appeal is vehemently opposed by the learnedAdvocate appearing on behalf of respondent no.2. It is vehementlyCsubmitted by the learned Advocate that in the facts and circumstancesof the case, both the learned Single Judge and the Division Bench of theHigh Court have rightly held that an application under Section 228 of theAct would not be barred by limitation, inasmuch as Article 137 of theLimitation Act would not be applicable.

D7.1 It is vehemently submitted by the learned Advocate appearingon behalf of respondent no.2 that the decision of this Court in the case ofKunvarjeet Singh Khandpur (supra) shall not be applicable to thefacts of the case on hand, as before this Court the petition was underSection 218/278 of the Act, however, in the present case, the petition isunder Section 228/276 of the Act.E

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7.2 It is further submitted by the learned Advocate appearing onbehalf of respondent no.2 that in the present case as such the probateproceedings before the court in England was never objected and therewas no objection to the grant of probate. It is submitted that, in fact, thefather of the appellants and respondent no.2 had given ‘No Objection’ toFthe said probate. It is submitted that in law, respondent no.2 is not obligatedto apply for letters of administration in Delhi. It is submitted that in thecase where the probate is not objected to, respondent no.2 had no reasonto seek the same as well. It is submitted that therefore ‘right to apply’under Article 137 of the Limitation Act, if any, never accrued againstGrespondent no.2. It is submitted that both the learned Single Judge aswell as the Division Bench have rightly dismissed the application underOrder VII Rule 11(d) of the CPC and have rightly refused to reject theplaint.

7.3 Making the above submissions, it is prayed to dismiss thepresent appeal.

8. We have heard the learned counsel for the respective partiesat length.

9. Two questions arise for consideration before this Court in thepresent appeal:

i) Whether Article 137 of the Limitation Act shall be applicablefor application for grant of probate or letters of administration?;

ii) Whether the application under Section 228 of the IndianSuccession Act shall be barred by the period of limitation prescribedunder Article 137 of the Limitation Act, and whether the period oflimitation for application under Section 228 of the Act would start to runfrom the date of grant of probate by a court of competent jurisdictionsituated beyond the limits of the State, whether within or beyond thelimits of India?

10. Now so far as the first question is concerned, the same is nownot res integra in view of the direct decision of this Court in the case ofKunvarjeet Singh Khandpur (supra) and in the case of KrishanKumar Sharma v. Rajesh Kumar Sharma reported in (2009) 11 SCC537. In both the aforesaid decisions, this Court has specifically observedand held that Article 137 of the Limitation Act shall be applicable to thepetitions for grant of probate or letters of administration also. Therefore,question no.1 is answered in the affirmative and it is observed and heldthat Article 137 of the Limitation Act, 1963 shall be applicable to theapplications for grant of probate or letters of administration.

11. Now so far as question no.2 is concerned, it is the specificcase on behalf of the appellants that the application submitted byrespondent No.2 for letters of administration under Section 228 of theAct is barred by the law of limitation as provided under Article 137 ofthe Limitation Act. As observed and held hereinabove, Article 137 of theLimitation Act shall be applicable to the application for grant of probateor letters of administration submitted under Section 276 of the Act.Similarly, even the application under Section 228 of the Act shall also becovered by Article 137 of the Limitation Act. Therefore, it is observedand held that Article 137 of the Limitation Act shall be applicable to theapplications under Section 228 of the Act also.

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A12. However, the next question which is posed for considerationbefore this Court is, when the ‘right to apply’ can be said to haveaccrued?

12.1 As per Article 137 of the Limitation Act, the period of limitationprescribed is three years and the three years begin to run when theB‘right to apply’ accrues. The crucial expression under Article 137 of theLimitation Act is ‘right to apply’. It is the case on behalf of the appellantsthat in the present case the ‘right to apply’ for letters of administrationhad accrued in the year 1997, more particularly on 21.11.1997 when theHigh Court of Justice, District Probate Registry, Birmingham (UK) passedan order for grant of probate of will dated 16.05.1990 in favour ofCrespondent no.2. It is the case on behalf of the appellants that therefore‘right to apply’ under Section 228 of the Act had accrued in favour ofrespondent no.2 on 21.11.1997 and, therefore, respondent no.2 wasrequired to submit an application for letters of administration within aperiod of three years from 21.11.1997. However, the application forDletters of administration has been submitted on 28.02.2001, i.e., after alapse of limitation of three years as prescribed under Article 137 of theLimitation Act and therefore Probate Case No. 15/2001 is clearly barredby law of limitation and, therefore, the same was required to be rejectedin exercise of powers under Order VII Rule 11 of the CPC. It is alsothe case on behalf of the appellants that so long as the will is not probated,Ethe period of limitation would not start running. However, once the willis probated, in that case, the period of limitation as provided under Article137 of the Limitation Act would begin to run from the date on which thewill is probated.

13. We have heard the learned counsel for the respective parties.F

14. At the outset, it is required to be noted that the relevant provisionsfor grant of probate or letters of administration with the will would beSection 276 of the Act. Section 276 of the Act reads as under:

“276.Petition for probate – (1) Application for probate or forGletters of administration, with the Will annexed, shall be made bya petition distinctly written in English or in the language in ordinaryuse in proceedings before this Court in which the application ismade, with the Will or, in the cases mentioned in sections 237, 238and 239, a copy, draft, or statement of the contents thereof, annexed,and stating—

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(a) the time of the testator’s death,

(b) that the writing annexed is his last Will and testament,

(c) that it was duly executed,

(d) the amount of assets which are likely to come to the petitioner’shands, and (e) when the application is for probate, that the petitioner is theexecutor named in the Will.

(2) In addition to these particulars, the petition shall furtherstate –

(a) when the application is to the District Judge, that the deceasedat the time of his death had a fixed place of abode, or had someproperty, situate within the jurisdiction of the Judge; and (b) when the application is to a District Delegate, that the deceasedat the time of his death had a fixed place of abode within thejurisdiction of such Delegate.

(3) Where the application is to the District Judge and nay portionof the assets likely to come to the petitioner’s hands is situate inanother State, the petition shall further state the amount of suchassets in each State and the District Judges within whosejurisdiction such assets are situate.”

14.1 When an application under Section 276 of the Act is submittedfor probate or for letters of administration with will, if any objection israised by any body with respect to execution of the will, in that case, theapplicant is required to prove the will and thereafter the will shall beprobated and the court may pass an order for letters of administration.However, in a case where a will has been proved or deposited in a courtof competent jurisdiction situated beyond the limits of the State, whetherwithin or beyond the limits of India, in that case, as provided under Section228 of the Act, when a properly authenticated copy of the will is produced,the letters of administration may be granted in favour of such person.Meaning thereby, in such a situation, the will is not required to be provedagain and it shall be conclusive. Therefore, Section 228 of the Act shallbe an enabling provision and it confers an additional right to apply forletters of administration on the basis of such authenticated copy of the A

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Awill. Therefore, as rightly observed by the learned Single Judge and theDivision Bench that Section 228 is akin to Section 276 of the Act.

15. Now the next question which may arise for consideration wouldbe, whether for an application for probate or letters of administrationwith will, the period of limitation would begin to run from which date?

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16. While considering the issue involved, the decision of this Courtin the case of Kunvarjeet Singh Khandpur(supra) is required to bereferred to and considered. In the said decision, this Court consideredthe decision of the Bombay High Court in the case of VasudevDaulatram Sadarangani v. Sajni Prem Lalwani reported in AIR 1983CBom. 268, as well as, the decision of the Madras High Court in the caseof S. Krishnaswami v. E. Ramiah, reported in AIR 1991 Mad. 214.In the said decision, this Court referred to and considered paragraph 17of the decision of the Madras High Court in the case of S.Krishnaswami(supra), which reads as under:

“17. In a proceeding, or in other words, in an application filed forgrant of probate or letters of administration, no right is asserted orclaimed by the applicant. The applicant only seeks recognition ofthe court to perform a duty. Probate or letters of administrationissued by a competent court is conclusive proof of the legalcharacter throughout the world. An assessment of the relevantprovisions of the Indian Succession Act, 1925 does not convey ameaning that by the proceedings filed for grant of probate or lettersof administration, no rights of the applicant are settled or securedin the legal sense. The author of the testament has cast the dutywith regard to the administration of his estate, and the applicantfor probate or letters of administration only seeks the permissionof the court to perform that duty. There is only a seeking ofrecognition from the court to perform the duty. That duty is onlymoral and it is not legal. There is no law which compels theapplicant to file the proceedings for probate or letters ofadministration. With a view to discharge the moral duty, theapplicant seeks recognition from the court to perform the duty. Itwill be legitimate to conclude that the proceedings filed for grantof 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 theproceedings for grant of probate or letters of administration as D

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applications coming within the meaning of an ‘application’ underArticle 137 if the Limitation Act, 1963.”

16.1 This Court approved the observations made in paragraph 17by the Madras High Court in the case of S. Krishnaswami (supra)insofar as the nature of the petition for grant of probate or letter ofadministration is concerned. However, this Court did not agree with thefinding that the application for grant of probate or letters of administrationis not covered by Article 137 of the Limitation Act.

16.2 In the aforesaid decision, this Court also considered andreferred to paragraph 16 of the decision of the Bombay High Court inthe case of Vasudev Daulatram Sadarangani (supra) in paragraph15, which reads as follows:

“16. Rejecting Mr. Dalpatrai’s contention, I summarise myconclusions thus –

(a) Under the Limitation Act no period is advisedly prescribedwithin which an application for probate, letters of administrationor succession certificate must be made; (b) The assumption that under Article 137 the right to apply nec-essarily accrues on the date of the death of the deceased, is un-warranted;

(c) Such an application is for the court’s permission to perform alegal duty created by a will or for recognition as a testamentarytrustee and is a continuous right which can be exercised any timeafter the death of the deceased, as long as the right to do sosurvives 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 necessaryto apply which may not necessarily be within 3 years from thedate of the deceased’s death; (e) Delay beyond 3 years after the deceased’s death would arousesuspicion and greater the delay, greater would be the suspicion; (f) Such delay must be explained, but cannot be equated with theabsolute bar of limitation; and A

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A(g) Once execution and attestation are proved, suspicion of delayno longer operates.”

This Court did not agree with/approve conclusion (b). However,approved conclusion (c), reproduced hereinabove.

17. Therefore, considering the law laid down by this Court in theBcase of Kunvarjeet Singh Khandpur (supra), it can be said that in aproceeding, or in other words, in an application filed for grant of probateor 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 letters of administration issued by a competent court isCconclusive proof of the legal character throughout the world. That theproceedings filed for grant of probate or letters of administration is notan action in law but it is an action in rem. As held by this Court in thecase of Kunvarjeet Singh Khandpur (supra), an application for grantof probate or letters of administration is for the court’s permissionto perform a legal duty created by a will or for recognition as aDtestamentary trustee and is a continuous right which can beexercised any time after the death of the deceased, as long asthe right to do so survives and the object of the trust exists orany part of the trust, if created, remains to be executed.

Therefore, even if the will is probated by any court mentioned inESection 228 of the Act, right to get the letters of administration is acontinuous right which can be exercised any time, as long as the right todo so survives and the object of the trust exists or any part of the trust,if created, remains to be executed.

18. Applying the law laid down by this Court in the aforesaidFdecision and the observations made hereinabove, the submission on behalfof the appellants that Probate Case No. 15/2001 filed by respondentno.2 for letters of administration under Section 228 of the Act, read withSection 276 of the Act is barred by law of limitation, cannot be accepted.At this stage, it is required to be noted that even in the plaint, it isGspecifically pleaded that after passing away of the father of the partiesin the year 2000, the appellants started intermeddling with propertiesbequeathed to respondent no.2, which were situated in Delhi and,therefore, left with no option, he was compelled to apply for letters ofadministration. Therefore, even as per the pleadings in the application, H

the cause of action started from the date on which the appellants startedintermeddling with the properties bequeathed to respondent no.2, afterpassing away of the father of the parties in the year 2000. Therefore, inthe facts and circumstances of the case, both the learned Single Judgeand the Division Bench have rightly refused to reject the application inexercise of powers under Order VII Rule 11 of the CPC. In the factsand circumstances of the case and as observed hereinabove, it cannotbe said that the application for letters of administration was clearly barredby the law of limitation which was required to be rejected in exercise ofpowers under Order VII rule 11(d) of the CPC. We are in completeagreement with the view taken by the High Court.

19. In view of the above and for the reasons stated above, thepresent appeal fails and the same deserves to be dismissed and isaccordingly dismissed. However, in the facts and circumstances of thecase, there shall be no order as to costs.

Nidhi Jain

Appeal dismissed.

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