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TMI Blog2009 (12) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... re contesting parties. The first suit CS 21 of 1999 was filed by the petitioner through his attorney Mrs. Aruna Malhotra, Respondent No. 4 herein, seeking a declaration that the Will dated. 04.02.1997 is not genuine etc. Shri Chetan Dayal filed another suit CS No. 38 of 1999 for declaration to the effect that the Will dated 04.02.1997 is the last and valid Will of late Shri D.C. Kaith. The two suits were disposed of together and it was decreed to the effect that the Will dated. 04.02.1997 is the last and final Will of the deceased Shri D.C. Kaith. 3. An application, I.A. No. 8352/2009 under Order 1 Rule 10 r/w Section 151 CPC seeks impleading Shri. Chetan Dayal, son of Shri. Rup Dayal, as respondent no 6 in this case. The applicant is beneficiary under the Will dated 04.02.1997, which it is contended, is the last Will of the deceased. It is contended that by the said Will, late Shri D.C. Kaith had bequeathed his half share in House no E-7/6, Vasant Vihar, New Delhi to the petitioner and the applicant in equal shares. The applicant has also filed a suit for partition and rendition of accounts i.e. CS 2318/2006 which is pending before this hon'ble Court. In terms of the Will ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shna Kumar Birla's case (supra) to be heard, as a party in the present petition as well. In these circumstances, the application for impleadment has to be, and is allowed. 6. The parties were heard on the question of maintainability of the present testamentary proceedings, particularly on the question of res judicata, on account of the decrees of the Chandigarh Civil court, (dated 30-7-2004) and the circumstance that a previous probate petition was rejected, in respect of the same Will, by this court. 7. It is pointed out by the party seeking impleadment that an earlier petition for grant of probate to the Will dated. 21.12.1995 was filed by Shri Arjun Raj Malhotra, the named executor in the Will, and the said Probate No. 46/2007 was dismissed by this Court by order dated 02.04.2008. That petition was dismissed on the ground that the petitioner had not approached the Court with clean hands and also that there was no evidence on record to prove the Will dated 21.12.1995. 8. The petitioner submits that the Shri Arjun Raj Malhotra, the executor of the Will dated. 21.12.1995, had failed to take proper steps to get the said alleged last Will of the deceased probated and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cata for the purpose of the proceeding under the Probate and Administration Act even when the Will had been declared to have been forged while pursuing a matter under application under the Guardians and Wards Act, 1880. 11. The petitioner contends that since the Chandigarh Court, which decreed to the effect that the, was not a Court of competent jurisdiction on the issue of validity of Will, therefore its decree that the Will dated 04.02.1997 was the last and valid Will of the deceased, is a nullity. For this purpose, the counsel has placed reliance on the following judgments: Sushil Kumar Mehta v. Govind Ram Bohra [1990] 1 SCC 193; Chandrabhai K. Bhoir and Ors. v. Krishna Arjun Bhoir and Ors. (2009) 2 SCC 315; Kiran Singh and Ors. v. Chaman Paswan and Ors. AIR 1954 S.C. 340. 12. The third respondent has filed Reply/Written Statement to the petition; his position is that the Will dated 04.02.1997 was the last and valid Will of the deceased. He also contends that as the deceased died on 03.12.1997, the petition is barred by time and suffers from laches. It is contended that the petitioner was aware that a Will later than the one he has set up in this case, existed; that Will w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limitation Act to proceedings for probate, or letters of administration. The issue was settled by the decision reported as Kunvarjeet Singh Khandpur v. Kirandeep Kaur (2008) 8 SCC 463. The Court held that Article 137 of the Limitation Act applies, in the following terms: 11. In the Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma (1977) 1 SCC 996, it was inter alia observed as follows: 22. The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil court. With respect we differ from the view taken by the two-judge bench of this Court in Athani Municipal Council case 2 and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a court. The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application falling within the scope of Article 137 of the 1963 Limitation Act. In terms of the aforesaid judgment any application to Civil Court under the Act is covered by Article 137. The applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard 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 of the Limitation Act, 1963. 15. Though the nature of the petition has been rightly described by the High Court, it was not correct in observing that the application for grant of probate or letters of Administration is not covered by Article 137 of the Limitation Act. Same is not correct in view of what has been stated in The Ker ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pound here was held not to be the last Will, but that the Will dated 4-2-1997 was the last Will of the deceased. Here the question is not so much about res judicata, or issue estoppel, as much as the issue of delay. The petitioner clearly was aware that there was a cloud over the Will sought to be propounded by him (claimed to have been executed by the deceased in 1995) by reason of another Will dated 4-2-1997. It became necessary for him, then, to assert his rights emanating from the Will of 1995. He did so in 1999, by filing a suit. The suit was dismissed on 30-4-2004. The petitioner had, in the meanwhile, taken no steps to approach the court having exclusive jurisdiction for probate or letters of administration. Even if the petitioner's knowledge of a dispute in relation to the Will now propounded by him, were to be assumed only in 1999, on a proper application of the law declared by the Supreme Court in Kunvarjeet Singh Khandpur, the right to apply accrued then. The three year period prescribed in Article 137 (of the schedule to the Limitation Act) therefore, commenced in 1999, and ended sometime in 2002. Even if the petitioner were to be given benefit of doubt, for some re ..... 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