2016 (1) TMI 1502 - HC - Indian Laws

Legality of will - main contention of the applicants is that the Will dated 11.12.1996 is not genuine one and it has been forged by the petitioners 1 and 2, viz., the sons of the deceased testator - Time Limitation - HELD THAT - It is quite apparent that all that is required in the eventuality of the Letters of Administration being applied for after a lapse of three years from the date of death of the deceased, is that there should be an explanation forthcoming for the delay in presentation of the application and not that it would be a bar to institution of such proceedings - such a requirement is so stipulated on account of there being a continuous right, and long delays would throw suspicion on the Will. However, if this delay is explained and the Will proved in accordance with law, there would be no impediment to the grant of Letters of Administration in respect of the Will. In the instant case, a perusal of the materials would show that even after the legal notice for partition was issued in 2003, no steps were taken. Nor after the suit was filed in 2007, steps could have been taken to apply for issuance of letters of administration. Therefore, it is clear that the petitioners deliberately waited for the suit to be over and only when the judgment was reserved in the suit in the year 2011, they have preferred the petition for grant of letters of administration. It cannot be stated that Letters Patent and Rules made thereunder by the High Court for regulating the procedure on the original side, are subordinate legislation and, therefore, only Limitation Act which is a superior legislation will prevail - the finding of the learned single Judge holding that Article 137 of the Limitation Act is not applicable to probate proceedings and dismissal of the Original Applications, in our considered opinion, require no interference. Appeal dismissed.

Summary

Issues Involved:
1. Jurisdiction of Probate Court
2. Applicability of Limitation Act, specifically Article 137
3. Overriding effect of the Rules of the Madras High Court Original Side over the Limitation Act
4. Continuous cause of action

Issue-wise Detailed Analysis:

Jurisdiction of Probate Court:
The court clarified that the probate court's jurisdiction is limited to determining the genuineness and due execution of the Will. It does not decide on the title or the rights of the parties. The court cited the Supreme Court's ruling in *Chiranjilal Shrilal Goenka v. Jasjit Singh and others* to emphasize that probate proceedings are concerned only with the validity of the Will and not with the title of the property.

Applicability of Limitation Act, specifically Article 137:
The court examined whether Article 137 of the Limitation Act applies to probate proceedings. It referred to the Supreme Court's decision in *Kunvarjeet Singh Khandpur v. Kriandeep Kaur* which held that Article 137 applies to applications for probate or Letters of Administration. However, the court noted that the right to apply for probate is a continuous right, and the delay in applying does not automatically bar the application if the delay is adequately explained. The court also cited various judgments, including *Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani*, to support the view that the right to apply for probate continues as long as the Will remains unprobated.

Overriding effect of the Rules of the Madras High Court Original Side over the Limitation Act:
The court discussed Order XXV Rule 9 of the Original Side Rules, which requires an explanation for the delay in applying for probate after three years from the testator's death. It concluded that these rules, formulated under the Letters Patent, have an overriding effect over the general provisions of the Limitation Act. The court cited the Supreme Court's decisions in *P.S. Sathappan v. Andhra Bank Limited* and *Iridium India Telecom Ltd. v. Motorola Inc.* to affirm that the special provisions of the Letters Patent prevail over the general law of limitation.

Continuous cause of action:
The court explained that the right to apply for probate is a continuous cause of action, meaning that the cause of action arises and continues as long as the Will remains unprobated. It referred to the Supreme Court's ruling in *Basic Shiksha Parishad v. Sugna Devi* to illustrate that in cases of continuous cause of action, the question of limitation does not arise.

Conclusion:
The court concluded that the probate court has exclusive jurisdiction to grant probate or Letters of Administration and that the law of limitation does not apply to such proceedings initiated under the Original Side Rules of the Madras High Court. The court upheld the learned single judge's decision that Article 137 of the Limitation Act is not applicable to probate proceedings. However, the court acknowledged the delay caused by the petitioners and directed that the proceedings for the grant of Letters of Administration be expedited and concluded within a year. The appeals were dismissed with no order as to costs.