Sameer Kapoor and another vs The State through Sub­Division Magistrate South, New Delhi and others

Sameer Kapoor and another ..Appellants

Versus

The State through Sub­Division Magistrate South, New Delhi and others ..Respondents

JUDGMENT

M.R. SHAH, J.

Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the High Court of Delhi at New

Delhi in F.A.O(OS) No. 11 of 2009, by which a Division Bench of

the High Court has dismissed the said appeal and has confirmed Signature Not Verified Digitally signed by VISHAL ANAND Date: 2019.04.30

the order passed by the learned Single Judge refusing to reject 11:47:48 IST Reason:

1

the plaint under Order VII Rule 11 of the CPC, the original

defendants have preferred the present appeal.

2. The brief facts leading to this appeal are, that one Smt.

Kailash Kapoor, a permanent resident of England, executed a will

dated 16.05.1990 bequeathing thereunder all her assets to two of

her grand­children. That the said Smt. Kailash Kapoor died in

England on 10.09.2001. According to the appellants, they acted

upon the said will and disposed of all the immovable properties of

the aforesaid testatrix, possessed in India between 6.9.2000 to

March, 2001. That after the death of late Smt. Kailash Kapoor,

the High Court of Justice, District Probate Registry of

Birmingham, England and Wales issued a probate in respect of

the said will vide order dated 21.11.1997. It appears that

thereafter in the year 2001, respondent no.2 herein, at whose

instance the will was probated in England, applied for letters of

administration for property situated in Delhi by filing a

Testamentary Case under Section 228 of the Indian Succession

Act (hereinafter referred to as the ‘Act’) being Testamentary Case

No. 15 of 2001.

2.1 That the appellant herein filed I.A. No. 13895 of 2006

before the learned Single Judge of the High Court, praying to

2 reject the plaint under Order VII Rule 11 of the CPC on the

ground that the said Testamentary Case under Section 228 of the

Act, considering Article 137 of the Limitation Act, 1963, is barred

by the law of limitation. It was the case on behalf of the

appellants that though no limitation would apply seeking grant of

probate so long as a person has not approached the court and

will is probated, however, once the court at England and Wales

had been approached and a probate had been granted, no

petition for letters of administration could have been filed after a

lapse of a period of three years. The said application was

opposed by respondent no.2 herein – the original applicant. It

was submitted that Article 137 of the Limitation Act would not

apply.

3. The learned Single Judge vide order dated 24.09.2008

dismissed the said application and refused to reject the plaint

under Order VII Rule 11 of the CPC by observing that Section

228 of the Act is akin to provisions of Section 222 and 276 of the

Act and, therefore, when there is no period of limitation

prescribed for submitting an application under Section 222

and/or Section 276 of the Act, for submitting an application

under Section 228 of the Act, the period of limitation shall not be

3 applicable. Therefore, the learned Single Judge was of the opinion

that Article 137 of the Limitation Act shall have no application.

4. Feeling aggrieved and dissatisfied with the order

passed by the learned Single Judge rejecting the application to

reject the plaint under Order VII Rule 11 of the CPC, the

appellants herein approached the Division 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 High Court has

dismissed the said appeal and has confirmed the order passed by

the learned Single Judge rejecting the application under Order

VII Rule 11 of the CPC.

5. Feeling aggrieved and dissatisfied with the impugned

judgment and 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 the appellants and Mr. M.A. Krishna Moorthy, learned

Advocate has appeared for respondent no.2.

6.1 Mr. Divyakant Lahoti, learned Advocate appearing on

behalf of the appellants has vehemently submitted that in the

facts and circumstances of the case, both the Division Bench as

4 well as the learned Single Judge have materially erred in not

rejecting the plaint under Order VII Rule 11 of the CPC.

6.2 It is vehemently submitted by the learned Advocate

appearing on behalf of the appellants that Article 137 of the

Limitation Act applies to any petition or application filed under

any Act before a Civil Court. It is submitted that it is not

confined to applications contemplated by or under the Code of

Civil Procedure. It is submitted that therefore, Article 137 of the

Limitation Act shall be applicable to the petitions under the

provisions of the Indian Succession Act also.

6.3 It is vehemently submitted by the learned Advocate

appearing on behalf of the appellants that till the will is un­

probated, right to apply for probate is a continuous cause of

action, therefore, Article 137 of the Limitation Act shall not be

applicable on petitions for grant of probate and 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

the Limitation Act will apply to any right which arises on account

of probate of will. It is submitted that in such a case the right

accrues on the date of grant of probate, and therefore, the period

of limitation will commence from such date. In support of the

5 above submissions, learned Advocate appearing on behalf of the

appellants has heavily relied upon the decision of this Court in

the case of Kunvarjeet Singh Khandpur v. Kirandeep Kaur,

reported in (2008) 8 SCC 463 (Paragraphs 15 & 16).

6.4 It is submitted by the learned Advocate appearing on

behalf of the appellants that in the present case respondent no.2

had applied for grant of probate of will dated 16.05.1990,

executed by late Smt. Kailash Kapoor, before the High Court of

Justice, District Probate Registry, Birmingham (UK), which was

granted by the High Court vide order dated 21.11.1997. It is

submitted that therefore, the right to apply under Section 228 of

the Act can be said to have accrued in favour of respondent no.2

on 21.11.1997. It is submitted that whereas respondent no.2

had preferred an application for grant of letters of administration

of the aforesaid will dated 16.05.1990 under Section 228 of the

Act, by a Probate Case No. 15/2001, after a lapse of period of

three years as prescribed under Article 137 of the Limitation Act,

i.e., on 28.02.2001. It is submitted therefore the application

submitted by respondent no.2 under Section 228 of the Act is

clearly barred by law of limitation and therefore the same is liable

6 to be rejected considering Order VII Rule 11(d) of the CPC – the

applicant’s application being barred by limitation.

6.5 It is further submitted by the learned Advocate

appearing on behalf of the appellants that the learned Single

Judge has materially erred in observing that Section 228 of the

Act is akin to provisions of Sections 222 and 276 of the Act. It is

submitted that while coming to the aforesaid conclusion, the

learned Single Judge has not property construed and/or

considered the language of the two provisions, i.e., Section 228

and Section 276 of the Act. It is submitted that Sections 228 and

276 of the Act are totally different and operate under different

circumstances. It is submitted that an application under Section

228 of the Act would be maintainable only in a case where a will

has been proved/probated and deposited in a court of competent

jurisdiction. It is submitted that therefore a valid application

under Section 228 has to be necessarily filed on the basis of a

will that has already been proved, authenticated and probated by

a competent court in foreign jurisdiction. It is submitted that no

such pre­condition or pre­requisite has been prescribed under

Section 276 of the Act. It is submitted that unlike Section 228 of

the Act, an application under Section 276 of the Act is to be filed

7 on the basis of a will which is un­probated and is being produced

before the court for the first time.

6.6 It is further submitted by the learned Advocate

appearing on behalf of the appellants that even the learned Single

Judge has also materially erred in observing that the object and

purpose of the two provisions 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 clear that a will in respect of

which letters of administration is sought to be granted under that

Section is an already recognized, proved or authenticated will,

unless rebutted. It is submitted that whereas the will in question

in an application under Section 276 of the Act is an un­

recognised will which is being produced before the court for the

first time and which is yet to be proved.

6.7 It is further submitted by the learned Advocate

appearing on behalf of the appellants that even the scope of

enquiry under Sections 228 and 276 of the Act is distinguishable

and different. It is submitted that will under Section 276 of the

Act is unauthenticated and yet to be proved. It is submitted that

however the will under Section 228 of the Act is already proved

and authenticated before a foreign court or a competent court

8 mentioned in Section 228 of the Act. It is submitted that

therefore the scope of enquiry under Section 228 of the Act is a

limited exercise.

6.8 It is further submitted by the learned Advocate

appearing on behalf of the appellants that the Division Bench of

the High Court has erred in its reasoning that Probate Case No.

15/2001 is not barred by limitation because it is the first Probate

Petition filed in India, as the earlier Probate proceedings were in

the Court of England and Wales. It is submitted that the

Division Bench has materially erred in not properly appreciating

the fact that the administration of an estate in probate is an in

rem proceedings. It is submitted therefore the law of limitation is

applicable even if the previous probate proceedings were initiated

in a foreign jurisdiction as the same are in rem. It is submitted

that therefore, both the learned Single Judge as well as the

Division Bench have materially erred in dismissing the

application filed by the appellants herein under Order VII Rule 11

of the CPC.

6.9 In support of his above submissions, learned Advocate

appearing for the appellants has heavily relied upon the decision

of the Punjab and Haryana High Court in the case of Estate of 9 Late Shri Gurcharan Dass Puri, reported in AIR 1987 P&H 122, as

well as, the decision of the Patna High Court in the case of

Ramanand Thakur v. Parmanand Thakur, reported in AIR 1982

Patna 87.

6.10 Making the above submissions and relying upon the

aforesaid decisions of this Court, Punjab & Haryana High Court

and Patna High Court, it is prayed to allow the present appeal

and quash and set aside the orders passed by the learned Single

Judge and the Division Bench and consequently reject the plaint

under Order VII Rule 11(d) of the CPC.

7. The present appeal is vehemently opposed by the

learned Advocate appearing on behalf of respondent no.2. It is

vehemently submitted by the learned Advocate that in the facts

and circumstances of the case, both the learned Single Judge

and the Division Bench of the High Court have rightly held that

an application under Section 228 of the Act would not be barred

by limitation, inasmuch as Article 137 of the Limitation Act

would not be applicable.

7.1 It is vehemently submitted by the learned Advocate

appearing on behalf of respondent no.2 that the decision of this

Court in the case of Kunvarjeet Singh Khandpur (supra) shall not 10 be applicable to the facts of the case on hand, as before this

Court the petition was under Section 218/278 of the Act,

however, in the present case, the petition is under Section

228/276 of the Act.

7.2 It is further submitted by the learned Advocate

appearing on behalf of respondent no.2 that in the present case

as such the probate proceedings before the court in England was

never objected and there was no objection to the grant of probate.

It is submitted that, in fact, the father of the appellants and

respondent no.2 had given ‘No Objection’ to the said probate. It

is submitted that in law, respondent no.2 is not obligated to

apply for letters of administration in Delhi. It is submitted that

in the case where the probate is not objected to, respondent no.2

had no reason to seek the same as well. It is submitted that

therefore ‘right to apply’ under Article 137 of the Limitation Act, if

any, never accrued against respondent no.2. It is submitted that

both the learned Single Judge as well as the Division Bench have

rightly dismissed the application under Order VII Rule 11(d) of

the CPC and have rightly refused to reject the plaint.

7.3 Making the above submissions, it is prayed to dismiss

the present appeal.

11

8. We have heard the learned counsel for the respective

parties at length.

9. Two questions arise for consideration before this Court

in the present appeal:

i) Whether Article 137 of the Limitation Act shall be

applicable for application for grant of probate or letters of

administration?;

ii) Whether the application under Section 228 of the

Indian Succession Act shall be barred by the period of limitation

prescribed under Article 137 of the Limitation Act, and whether

the period of limitation for application under Section 228 of the

Act would start to run from the date of grant of probate by a

court of competent jurisdiction situated beyond the limits of the

State, whether within or beyond the limits of India?

10. Now so far as the first question is concerned, the same

is now not res integra in view of the direct decision of this Court

in the case of Kunvarjeet Singh Khandpur (supra) and in the case

of Krishan Kumar Sharma v. Rajesh Kumar Sharma reported in

(2009) 11 SCC 537. In both the aforesaid decisions, this Court

has specifically observed and held that Article 137 of the

Limitation Act shall be applicable to the petitions for grant of 12 probate or letters of administration also. Therefore, question

no.1 is answered in the affirmative and it is observed and held

that Article 137 of the Limitation Act, 1963 shall be applicable to

the applications for grant of probate or letters of administration.

11. Now so far as question no.2 is concerned, it is the

specific case on behalf of the appellants that the application

submitted by respondent No.2 for letters of administration under

Section 228 of the Act is barred by the law of limitation as

provided under Article 137 of the Limitation Act. As observed and

held hereinabove, Article 137 of the Limitation Act shall be

applicable to the application for grant of probate or letters of

administration submitted under Section 276 of the Act.

Similarly, even the application under Section 228 of the Act shall

also be covered by Article 137 of the Limitation Act. Therefore, it

is observed and held that Article 137 of the Limitation Act shall

be applicable to the applications under Section 228 of the Act

also.

12. However, the next question which is posed for

consideration before this Court is, when the ‘right to apply’ can

be said to have accrued?

13 12.1 As per Article 137 of the Limitation Act, the period of

limitation prescribed is three years and the three years begin to

run when the ‘right to apply’ accrues. The crucial expression

under Article 137 of the Limitation Act is ‘right to apply’. It is the

case on behalf of the appellants that in the present case the ‘right

to apply’ for letters of administration had accrued in the year

1997, more particularly on 21.11.1997 when the High Court of

Justice, District Probate Registry, Birmingham (UK) passed an

order for grant of probate of will dated 16.05.1990 in favour of

respondent 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 of respondent no.2 on 21.11.1997 and,

therefore, respondent no.2 was required to submit an application

for letters of administration within a period of three years from

21.11.1997. However, the application for letters of

administration has been submitted on 28.02.2001, i.e., after a

lapse of limitation of three years as prescribed under Article 137

of the Limitation Act and therefore Probate Case No. 15/2001 is

clearly barred by law of limitation and, therefore, the same was

required to be rejected in exercise of powers under Order VII Rule

11 of the CPC. It is also the case on behalf of the appellants that

14 so long as the will is not probated, the period of limitation would

not start running. However, once the will is probated, in that

case, the period of limitation as provided under Article 137 of the

Limitation Act would begin to run from the date on which the will

is probated.

13. We have heard the learned counsel for the respective

parties.

14. At the outset, it is required to be noted that the

relevant provisions for grant of probate or letters of

administration with the will would be Section 276 of the Act.

Section 276 of the Act reads as under:

“276.Petition for probate – (1) Application for probate or for letters of administration, with the Will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before this Court in which the application is made, with the Will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or statement of the 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 the petitioner’s hands, and

15

(e) when the application is for probate, that the petitioner is the executor named in the Will. (2) In addition to these particulars, the petition shall further state –

(a) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and

(b) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate. (3) Where the application is to the District Judge and nay portion of the assets likely to come to the petitioner’s hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate.”

14.1 When an application under Section 276 of the Act is

submitted for probate or for letters of administration with will, if

any objection is raised by any body with respect to execution of

the will, in that case, the applicant is required to prove the will

and thereafter the will shall be probated 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 court of competent

jurisdiction situated beyond the limits of the State, whether

within or beyond the limits of India, in that case, as provided

under Section 228 of the Act, when a properly authenticated copy

16 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 proved again and it shall

be conclusive. Therefore, Section 228 of the Act shall be an

enabling provision and it confers an additional right to apply for

letters of administration on the basis of such authenticated copy

of the will. Therefore, as rightly observed by the learned Single

Judge and the Division Bench that Section 228 is akin to Section

276 of the Act.

15. Now the next question which may arise for

consideration would be, whether for an application for probate or

letters of administration with will, the period of limitation would

begin to run from which date?

16. While considering the issue involved, the decision of

this Court in the case of Kunvarjeet Singh Khandpur(supra) is

required to be referred to and considered. In the said decision,

this Court considered the decision of the Bombay High Court in

the case of Vasudev Daulatram Sadarangani v. Sajni Prem

Lalwani reported in AIR 1983 Bom. 268, as well as, the decision of

the Madras High Court in the case of S. Krishnaswami v. E.

Ramiah, reported in AIR 1991 Mad. 214. In the said decision, this 17 Court referred to and considered paragraph 17 of 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 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 letters 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 Article 137 if the Limitation Act, 1963.”

18 16.1 This Court approved the observations made in

paragraph 17 by the Madras High Court in the case of S.

Krishnaswami (supra) insofar as the nature of the petition for

grant of probate or letter of administration is concerned.

However, this Court did not agree with the finding that the

application for grant of probate or letters of administration is not

covered by Article 137 of the Limitation Act.

16.2 In the aforesaid decision, this Court also considered

and referred to paragraph 16 of the decision of the Bombay High

Court in the case of Vasudev Daulatram Sadarangani (supra) in

paragraph 15, which reads as follows:

“16. Rejecting Mr. Dalpatrai’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 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;

19 (d) The right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the 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 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 the case of Kunvarjeet Singh Khandpur (supra), it can be said

that 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 letters of

administration issued by a competent court is conclusive proof of

the legal character throughout the world. That the proceedings

filed for grant of probate or letters of administration is not an

action in law but it is an action in rem. As held by this Court in

the case of Kunvarjeet Singh Khandpur (supra), an application

for grant of probate or letters of administration is for the

20 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 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.

Therefore, even if the will is probated by any court

mentioned in Section 228 of the Act, right to get the letters of

administration is a continuous right which can be exercised any

time, 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.

18. Applying the law laid down by this Court in the

aforesaid decision and the observations made hereinabove, the

submission on behalf of the appellants that Probate Case No.

15/2001 filed by respondent no.2 for letters of administration

under Section 228 of the Act, read with Section 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 is specifically

pleaded that after passing away of the father of the parties in the

21 year 2000, the appellants started intermeddling with properties

bequeathed to respondent no.2, which were situated in Delhi

and, therefore, left with no option, he was compelled to apply for

letters of administration. Therefore, even as per the pleadings in

the application, the cause of action started from the date on

which the appellants started intermeddling 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 the learned Single Judge and the

Division Bench have rightly refused to reject the application in

exercise of powers under Order VII Rule 11 of the CPC. In the

facts and circumstances of the case and as observed

hereinabove, it cannot be said that the application for letters of

administration was clearly barred by the law of limitation which

was required to be rejected in exercise of powers under Order VII

rule 11(d) of the CPC. We are in complete agreement with the

view taken by the High Court.

19. In view of the above and for the reasons stated above,

the present appeal fails and the same deserves to be dismissed

and is accordingly dismissed. However, in the facts and

circumstances of the case, there shall be no order as to costs.

22 ……………………………………J. [L. NAGESWARA RAO]

NEW DELHI; …………………………………….J. APRIL 29, 2019. [M.R. SHAH]

23