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TMI Blog1983 (3) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... .) 13. Coming to the aspect of limitation, Mr. Dalapatrai urged that by virtue of the residuary Art. 37 of the Limitation Act, the petition is barred by limitation as it was not filed within 3 years from the date of the deceased's death on 3rd Jan., 1974. which according to Mr. Dalapatrai was that starting point when the petitioner's right to apply accrued. 14. This contention is fal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is no warrant for the assumption that the right to apply envisaged in Art. 137 necessarily accrues on the date of the death of the deceased. Such an application is to seek the Court's imprimatur to perform a duty created by a Will or for recognition as a testamentary trustee. The right to apply is a continuous right which is capable of being exercised as long as the object of the trust exi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he delay was explained by the fact that there was no very urgent necessity for taking out probate, the estate itself being of trifling value. For that matter, provisions for explaining delay in making the application beyond 3 years of the deceased's death is to be found in R. 382 of the High Court Rules. The 3-year period is presumably on the assumption that the necessity to make the applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he caveatrix filed her suit on 18th Jan., 1977. 15. Reliance was placed by Mr. Dalapatrai on the observations in Kerala State Electricity Board v. T. P. Kunhaliumma, [1977]1SCR996 (which was a case under Section 16(3) of the Telegraph Act claiming enhanced compensation), that the words any other application in Art. 137 would be a petition or any application under any Act. Those observations m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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