RAMESH NIVRUTTI BHAGWAT versus DR. SURENDRA MANOHAR PARAKHE on 4 October 2019

1. This appeal by special leave questions the decision of theBombay High Court affirming the rejection of an application forrevocation of letters of administration granted to the respondent,B(hereafter “the LOA holder”), in respect of the will of deceased Mrs.Antoinette Bendre Bhagwat (hereafter “Antoinette”).

2. Antoinette was the wife of Balaji Balwant Bhagwat (hereafter“Balaji”). The couple were permanent residents of California, US andwere US citizens. Balaji predeceased Antoinette, bequeathing allCproperties to her. She died on 23.1.1981 at Alhambra, Los AngelesCounty, California. U.S.A. In her last will dated 24.6.1977, shebequeathed her properties to her husband. The will stipulated that inthe event of Balaji predeceasing her, the property was to vest in aninter - vivos trust. The trust was created by the testatrix and herhusband by a deed dated 24.6.1977. The Executor had filed a petitionDfor probate of Antoinette’s will (Probate Case No. 662463 in theSuperior Court of the State of California for Los Angeles County). Itwas probated on 26.2.1981.

3. On 02.11.1982, Dinkar Sambhaji Patole (hereafter “Patole”)as constituted attorney of the original executor’s successor, applied toEthe Bombay High Court (Petition No. 915/ 1982) for grant of letters ofadministration with an authenticated copy of the will annexed to thepetition, in respect of the property and credit of the deceased, in theState of Maharashtra. Patole died during the pendency of proceedingswhich were continued by Dr. Surendra Manohar Parakhe who was dulybrought on record. letters of administration were granted by the HighFCourt by order dated 24.11.1994.

4. Ramesh Nivrutti Bhagwat, the appellant (hereafter “Ramesh”)claiming to be a relative of Antoinette’s husband, took out a notice ofmotion (No. 912 of 1997) in Petition No. 915/ 1982 (i.e. the originaladministration proceeding). That application (notice of motion) wasGallowed to be withdrawn, with liberty to initiate appropriate proceedings.Ramesh claimed that neither he nor his father, nor any other familymember had notice of the administration petition. It was alleged thatonly when the respondent LOA holder applied for mutation of name ofRural Gospel and Medical Mission of India, on the basis of the lettersissued by the court, did he come to know about it after making inquiriesHin the office of the High Court. Ramesh claimed that on 29.03.1997 he learnt that the respondent had obtained letters of administration inrespect of the will of Balaji by filing another Petition No. 912/ 97. Thiswas allowed to be withdrawn on 01.04.1998. He then filed anapplication for revocation on 29.07.1999.

5. Ramesh alleged that the LOA holder had not complied withthe direction of the court granting letters of administration by preparingan inventory of the property and credits within six months, and furtherthat he did not render accounts of the property and credits within oneyear. The other allegation was that letters of administration wereobtained by suppression of material facts and by misleading the Court.The appellant alleged that his uncle, late Balaji, had established theBhagwant Mukti Ashram and the name of the Ashram was mutated inthe revenue records in respect of the property. The testatrix’s will andthat of Balaji clearly showed that their intention was to use the propertyfor charitable purposes. The appellant Ramesh also alleged that theSuperior Court of California granted probate to John Graf Klotzle whowas named as the successor by the earlier executor (Carl Kinsinger)and that the said executor appointed the respondent as his attorney forobtaining letters of administration. Therefore, it was alleged that theLOA holder was not appointed executor by the will. It was alleged thatthe probate was obtained from the Superior Court of California withoutnotice to the petitioner or his father or any other relative. It was allegedto have been obtained by fraud and suppression of material facts andthe said decision is given contrary to, and ignoring the law in force inIndia.

6. The LOA holder opposed the application for cancellation ofprobate on several grounds, including that the petition was barred bythe law of limitation, inasmuch as such applications are covered byArticle 137 of the Limitation Act,1963, and the petition ought to havebeen presented within three years. It was urged that even if the periodof pendency of notice of motion were excluded, the petition forcancellation of probate was barred by time. It was also urged that theappellant had no locus standi to apply for revocation of the grant ashe had no interest in the estate of the deceased on intestacy. It wasalleged that the letters of administration granted by the court was anancillary grant under Sections 228 and 271 of the Indian SuccessionAct, 1925 and could not be revoked as long as the original grantsubsisted. The Superior Court of California which probated the willfollowed the necessary procedure.

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A7.A learned Single Judge of the Bombay High Court relied onRukminidevi v. Narendra Lal Gupta, (1985) 1 SCC 144, to say thatif a party does not contest proceedings for grant of probate, it cannotbe permitted to question the validity of the will by a collateral attack indifferent proceedings. The court held that the grant being in rem, bindsnot only persons who are parties but also others who are not parties toBthe proceedings, whether they had notice or not. The probate grantedby the competent court is conclusive on the validity of the will unlessrevoked in accordance with law, and no evidence can be admitted toimpeach it except in the proceedings for revocation. Thus, since theoriginal probate granted by the California court was not challenged byCappropriate proceedings and since the probate was in force, there isno question of revoking an ancillary grant which was merely to giveeffect to the original probate of the will granted by the California court.The Single Judge also held that since the letters of administration weregranted in ancillary proceedings on 25.11.1994 and the petition for itsrevocation was filed on 21.7.1999, proceedings were time barred. TheDSingle Judge held that such proceedings are covered by Article 137 ofthe Limitation Act, 1963, which requires the application to be filed within3 years from the date when the right to apply accrues. Even if theperiod spent on the notice of motion from 29.3.1997 to 1.4.1998 wereexcluded from consideration, the petition for revocation was filed beyondthe period of three years from 25.11.1994, as the three year periodEexpired on 24.11.1997, and the revocation petition was filed on21.7.1999. The court, after excluding the period of seven months andtwo days spent in pursuing the remedy of notice of motion, held it tobe hopelessly barred by time. The Single Judge also held that theappellant Ramesh was not an heir of the deceased - a fact admittedFby him in the rejoinder affidavit. In view of these facts, the applicationfor revocation was rejected. Ramesh appealed unsuccessfully to theDivision Bench. The judgment of the Division Bench rejected the solecontention made in the appeal, that the law prescribed no limitation foran application of cancellation of letters of administration.

G8.Learned counsel for the appellant argued that Ramesh hadno notice of the proceedings initiated for grant of letters of administrationand that he and his father (Balaji’s brother) became aware of the factonly when the properties were sought to be mutated in the revenuerecords, pursuant to the letters granted. It was submitted that thelimitation for filing an application should be calculated from the date ofHknowledge of the grant, and not the date of grant.

9. Counsel for the respondent, on the other hand, urged this courtto dismiss the appeal. It was contended that the letters of administrationin respect of the will in question dated 24.06.1977 were granted by thecourt after due notice and citation; proceedings for their grant were inrem. Consequently, when granted, the letters of administration operatedagainst the entire world. The cause of action, if any, for seeking theircancellation, therefore, accrued from the date of their grant, and noton the date of knowledge of grant, in the absence of any allegation offraud.

10. As evident, the appellant’s application for cancellation of theletters of administration was rejected concurrently. The only questionurged is whether there is any limitation prescribed and if not, whetherthe residuary provision (Article 137 in the schedule to the LimitationAct, 1963 – hereafter “the Act”) applies and for which the starting pointof limitation is the date of alleged knowledge of the grant of letters ofadministration.

11. The relevant provisions dealing with recognition in respectof grant of probate, of letters of administration in respect of the probategranted, and cancellation of probate (or letters of administration) of theIndian Succession Act, 1925, read as follows:

“Section 228 - Administration, with copy annexed, ofauthenticated copy of Will proved abroad When a Will has been proved and deposited in a Court ofcompetent jurisdiction situated beyond the limits of the State,whether within or beyond the limits of 1 India, and a properlyauthenticated copy of the Will is produced, letters of administration may be granted with acopy of such copy annexed.

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Section 263 - Revocation or annulment for just cause The grant of probate or letters of administration may berevoked or annulled for just cause.

Explanation.—Just cause shall be deemed to exist where—

(a) the proceedings to obtain the grant were defective insubstance; or A

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A(b) the grant was obtained fraudulently by making a falsesuggestion, orsuggestion, or by concealing from theCourt something material to the case; or

(c) the grant was obtained by means of an untrue allegationof a fact essential in point of law to justify the grant,Bthough such allegation was made in ignorance orinadvertently; or (d) the grant has become useless and inoperative throughcircumstances; or C(e) the person to whom the grant was made has willfullyand without reasonable cause omitted to exhibit aninventory or account in accordance with the provisionsof Chapter VII of this Part, or has exhibited under thatChapter an inventory or account which is untrue in amaterial respect.

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(i) The Court by which the grant was made had nojurisdiction.

E(ii) The grant was made without citing parties who oughtto have been cited.

(iii) The Will of which probate was obtained was forged orrevoked.

(iv) A obtained letters of administration to the estate of B,Fas his widow, but it has since transpired that she wasnever married to him.

(v) A has been taken administration to the estate of B as ifhe had diedintestate, but a Will has since beendiscovered.G

(vi) Since probate was granted, a latter Will has beendiscovered.

(vii) Since probate was granted, a codicil has beendiscovered which revokes or adds to the appointmentHof executors under the Will.

(viii) The person to whom probate was, or letters ofadministration were,granted has subsequently becomeof unsound mind.

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276. Petition for probate-(1) Application for probate or forletters ofadministration, with the Will annexed, shall be madeby a petition distinctly written in English or in the languagein ordinary use inproceedings before this Court in which theapplication is made, with the Will or, in the cases mentionedin sections 237, 238 and 239, a copy, draft, or statement ofthe contents thereof, annexed, and stating—

(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 thepetitioner’s hands, and (e) when the application is for probate, that the petitioneris the executor named in the Will.

(2) In addition to these particulars, the petition shall furtherstate - (a) when the application is to the District Judge, that thedeceased at the time of his death had a fixed place ofabode, or had some property, situate within thejurisdiction of the Judge; and (b) when the application is to a District Delegate, that thedeceased at the time of his death had a fixed place ofabode within the jurisdiction of such Delegate.

(3) Where the application is to the District Judge and nayportion ofthe assets likely to come to the petitioner’shands is situate in another State, the petition shallfurther state the amount of such assets in eachStateand the District Judges within whose jurisdiction suchassets are situate.”

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12. The Indian Succession Act, 1925 does not prescribe aspecific period of limitation for the grant of probate, or for moving anapplication for cancellation of probate or letters of administration. Theresiduary entry Article 137 of the Act, which covers proceedings forwhich no period of limitation is stipulated in the Act, provides for a three- A

year period of limitation. Article 137 reads as follows:

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DescriptionPeriod ofTime from which periodlimitationbegins to run37. Any other applicationThree yearsWhen the right to applyfor which no period ofaccrueslimitation is providedCelsewhere in thisDivision.

13. This issue was considered in Kunvarjeet Singh Khandpurv. Kirandeep Kaur & Ors.,(2008) 8 SCC 463. This court negativedthe plea that since the Act prescribes no period of limitation in regardDto matters concerning grant of probate or letters of administration, thereis no time limit. The court followed the decision in the Kerala StateElectricity Board, Trivandrum v. T.P. Kunhaliumma,(1977) 1 SCR996 which took note of the change in the collocation of words in Article137 of the Limitation Act, 1963 compared with Article 181 of theELimitation Act, 1908, and held that applications contemplated underArticle 137 are not applications confined to the Code of Civil Procedure,1908. In the older Limitation Act of 1908, there was no division betweenapplications in specified cases and other applications, as in theLimitation Act, 1963. The court held in Kerala State Electricity BoardF(supra) that:

“The words “any other application” under Article 137cannot be said on the principle of ejusdem generis to beapplications under the Civil Procedure Code other than thosementioned in Part I of the third division. Any otherapplication under Article 137 would be petition or anyapplication under any Act. But it has to be an applicationto a court for the reason that Sections 4 and 5 of the 1963Limitation Act speak of expiry of prescribed period whencourt is closed and extension of prescribed period ifapplicant or the appellant satisfies the court that he had G

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sufficient cause for not preferring the appeal or making theapplication during such period.

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22. The conclusion we reach is that Article 137 of the 1963Limitation Act will apply to any petition or application filedunder any Act to a civil court. With respect we differ fromthe view taken by the two- judge bench of this Court inAthani Municipal Council case and hold that Article 137 ofthe 1963 Limitation Act is not confined to applicationscontemplated by or under the Code of Civil Procedure.”

14. Applying the ratio in Kerala Electricity Board (supra), thecourt, in Kunvarjeet Singh Khandpur(supra) observed that:

“the crucial expression in the petition is “right to apply”.In view of what has been stated by this Court, Article 137 isclearly applicable to the petition for grant of letters ofadministration. As rightly observed by the High Court in suchproceedings the application merely seeks recognition fromthe Court to perform a duty because of the nature of theproceedings it is a continuing right.”

The court then concluded that the right to apply for probateaccrues on the date of death of the testator.

15. Recently, in Sameer Kapoor and Another v. State throughSub-Divisional Magistrate South, New Delhi and Others, 2019Online SCC 630 (SC), the context was slightly different; the probatewas issued by a foreign court. The executor sought letters ofadministration in an Indian court (like in the present case), under Section228. The court dealt with the objection of limitation, and noticed, firstly,that Kunvarjeet Singh Khadapur (supra) had ruled about applicabilityof Article 137 for grant of probatein the first instance. Drawing adistinction from the grant of probate (or letters of administration) andthe recognition of that, under Section 228, the court (in Sameer Kapoor(supra)) held as follows:

“it can be said that in a proceeding, or in other words, inan application filed for grant of probate or letters ofadministration, no right is asserted or claimed by theapplicant. The applicant only seeks recognition of the court A

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to perform a duty. Probate or letters of administration issuedby a competent court is conclusive proof of the legalcharacter throughout the world. That the proceedings filedfor grant of probate or letters of administration is not anaction in law but it is an action in rem. As held by this Courtin the case of Kunvarjeet Singh Khandpur (supra), anapplication for grant of probate or letters of administrationis for the court’s permission to perform a legal duty createdby a will or for recognition as a testamentary trustee and isa continuous right which can be exercised any time after thedeath of the deceased, as long as the right to do so survivesand the object of the trust exists or any part of the trust, ifcreated, remains to be executed.”

16. The decision in Lynette Fernandes v. Gertie Mathias,(2018) 1 SCC 271, dealt with the precise issue of the period oflimitation applicable for an application for cancellation of a probate orletters of administration. This court held as follows:

“One must keep in mind that the grant of probate by aCompetent Court operates as a judgment in rem and oncethe probate to the Will is granted, then such probate is goodnot only in respect of the parties to the proceedings, butagainst the world. If the probate is granted, the sameoperates from the date of the grant of the probate for thepurpose of limitation Under Article 137 of the Limitation Actin proceedings for revocation of probate. In this matter, asmentioned supra, the Appellant was a minor at the time ofgrant of probate. She attained majority on 09.09.1965. Shegot married on 27.10.1965. In our considered opinion, threeyears limitation as prescribed Under Article 137 runs fromthe date of the Appellant attaining the age of majority i.e.three years from 09.09.1965. The Appellant did not chooseto initiate any proceedings till the year 25.01.1996 i.e., agood 31 years after she attained majority. No explanationworthy of acceptance has been offered by the Appellant toshow as to why she did not approach the Court of law withinthe period of limitation. At the cost of repetition, we observethat the Appellant failed to produce any evidence to provethat the Will was a result of fraud or undue influence. The RAMESH NIVRUTTI BHAGWAT v. DR. SURENDRAMANOHAR PARAKHE [S. RAVINDRA BHAT, J.]

same Will has remained un-challenged until the date of filingof application for revocation. No acceptable explanation isoffered for such a huge delay of 31 years in approachingthe Court for cancellation or revocation of grant of probate.”

17. In the present case, the letters of administration were grantedin ancillary proceedings on 25.11.1994. The High Court took note ofthe fact that the notice of motion (in the disposed of proceeding) wasfiled on 29.03.1997; it was withdrawn on 01.04.1998. The petition forrevocation of the letters of administration were filed on 29.7.1999.Proceedings were clearly time barred, given that the original grant ofthe ancillary letters took place on 25.11.1994; they constituted noticeto all concerned. Clearly, the petition for revocation of letters ofadministration was time barred. It is accordingly held that there is noinfirmity in the concurrent findings impugned; the appeal fails and isdismissed with no order as to costs.

Nidhi Jain

Appeal dismissed

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