ORDER
Vikramajit Sen, J.
1. This application under Order 1 Rule 10 has been filed by S. Gurcharan Singh, son of late S. Patwant Singh, through his counsel Shri Kailash Chand Dewan. It is prayed that he should be imp leaded as a party in the present proceedings which are for the grant of Letters of Administration with the Will attached, relating to the estate of Mrs. Raseel Kohli, the deceased mother of the Petitioner and her deceased brother, the original Respondent No. 2. It has been pleaded that when the Applicant came to meet his uncle, S. Raja Singh he came to learn, in the course of conversation, of the pendency of these proceedings. He was then informed by his counsel that he should move an application for becoming a party so that the Will dated 1.10.1987 executed by the testatrix Dr. (Mrs.) Raseel Kohli, now deceased in respect of properties mentioned as 7/29, Darya Ganj, New Delhi, and property No. 6-B, Mathura Road, New Delhi that the Applicant is moving the present application before this Hon’ble Court for the purpose of determina-tion of the right, title and interest which the Applicant has acquired by virtue of a Will dated 1.10.1987 executed in his favour by the testarix Dr. Mrs. Raseel Kohli, now deceased. It has been further pleaded that the application is being moved from the date that he gained knowledge of the pendency of these proceedings. The legal submission that the Applicant is a necessary and proper party and has a right to be heard in the pending probate petition is thereafter made.
2. Various objections have been raised by the Petitioner but in my opin-ion these do not call to be dealt with in specific and separate detail. Admittedly, the alleged Will dated 1.10.1987 has not seen the light of day heretofore. Considering the fact that there was no blood relationship between late Dr. (Mrs.) Raseel Kohli and the Applicant and also because the Applicant is not in possession of property bearing No. 6-B, Jangpura Exten-sion, Mathura Road, New Delhi, probate proceedings, for giving judicial imprimatur to the Will dated 1.10.1987 ought to have been initiated much earlier. It would be reasonable to assume that any prudent person would immediately initiate probate proceeding of the alleged Will dated 1.10.1987. It would also be further reasonable to presume against the genuineness of this Will since no proceedings have hithertofore been start-ed by the present applicant. I am fully mindful of the fact that it is not mandatory that a probate be obtained in respect of Wills executed in and dealing with properties in Delhi, but this cannot be stretched to the extremity that even where there is a overwhelming probability of the Will being disputed there is still no obligation for initiating these legal steps. In the present case, numerous proceedings are pending between the petitioner, who is the daughter of late Dr. (Mrs.) Raseel Kohli and her late brother. Disputes are also pending between her and Smt. Harnam Kaur & Ors. since it is alleged that Mrs. Harnam Kaur, Mrs. Mahinder Kaur and Shri Jagjit Singh, all partners of M/s. Texla Service Centre, 6-B, Jangpura Extension, Mathura Road, New Delhi have trespassed into this property and have admitted to purchase titular rights thereof contrary to injunctions passed by this Court. The uncle of the Applicant, S. Raja Singh is a resi-dent of the very property and it would, therefore, be fair to assume that the Applicant had full knowledge of the pendency of these conflagatory litigations. Yet no action has been taken by the Applicant, and no reason has been given why this action has not been taken.?
3. I have taken this view after considering the decision in Ramanand Thakur Vs. Permanand Thakur, , where it was observed that the “right to apply for a probate accrues from day to day so long as the Will remains unprofaned. In other words, the right to apply accrues every day and the cause of action for an application for probate arises every moment so long as the will remains unprofaned and, therefore, for such an application there is no period of limitation and for taking this view we find full support from the Calcutta case which also finds support from the view taken by the Madras High Court in the case of Gnanmuthu Upadesi Vs. Vana Koipillai Nadan, (1894) ILR 17 Mad. 379). Therefore, while holding that the Art. 137 of the new Limitation Act applies to any petition or application filed under any Act, we do not feel any difficulty to come to the conclusion that so far as the application for grant of a Probate or Letters of Administration is concerned, they are not governed by any Arti-cle of the Limitation Act. The application accordingly fails and, is hereby dismissed but in the circumstances, we shall leave the parties to bear their own costs.”
4. It appears to me, with due deference to the Learned Judges, that while correctly appreciating in paragraph 4, that the Apex Court had overruled its earlier view that Article 137 of the Limitation Act applied only to applications made under the Civil Procedure Code, they were influenced by decision rendered on the basis of the old Limitation Act.
5. In Kerala State Electricity Board, Trivandrum Vs. T.P. Kunhaliumma, , Article 137 of the Limitation Act, 1963 was held to “apply to any petition”
“The conclusion we reach is that Article 137 of the 1963 Limita- tion 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 (supra) 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.”
6. The decision in Shobha Kshirsagar Vs. Smt. Janki Kshirsagar & Anr., , in which a Learned Single Judge held that Art. 137 cannot apply to an application for probate, with respect, cannot be reconciled with the decision of the Apex Court in the Kerala State Electricity Board’s case (supra). The Learned Judge proceeded on the foundation of the deci-sions rendered by some High Court, which decisions were predicated on the old Limitation Act. Therefore, reliance on precedents prior to the render-ing of the decision in the Kerala State Electricity Board’s case (supra) would be inappropriate. For these very reasons I feel constrained not to follow the ratio in Balwant Vs. Mainabai, .
7. In a decision of a Division Bench rendered in Hari Narain Vs. Subhash Chander, , the argument that no limitation had been prescribed in filing of an application for revocation of a probate granted under the Succession Act was referred to as an “astounding proposi-tion of law put forth by the learned counsel for the Applicant”. After discussing the law as enunciated by the Supreme Court, it was held by the learned Division Bench that Article 137 of the Limitation Act, 1963 would apply to any petition or application filed in a Court where no other period of limitation had been prescribed. After careful consideration I would extend the ratio of this decision mutates mutants to also cover cases pertaining to the grant of probate, where it can be fairly assumed that the Petitioner had knowledge that the Will was likely to be disputed. Article 137 of the Limitation Act, 1963 reads as under :
Description of suit Period of Limitation Time from which
period begins to run
137. Any other three years When the right
application for which to apply accrues.
no period of limitation
is provided elsewhere
in this Division.
The period of three years would surely commence atleast from the date on which a legatee under a Will could be justifiably ascribed with the knowledge that the Will on which his claim is founded is likely to be disputed by other persons especially the natural heirs of the Testatrix. By way of adumbration, hypothetically, a Will may have been executed in Delhi in 1950. The bequests made and dealt with therein may not have come into any dispute for several decades. It could be that some legatees were in possession of the properties with the tacit permission or approval of the other legatees, which approval was subsequently withdrawn. So long as the rights of any particular legatee are to emanate and flow from the Will, probate proceedings ought to be filed atleast within three years from this conjectured withdrawal of permission. That would then be the latest date on which “the right to apply accrues”. This would be the most appropriate and meaningful interpretation given to the words “when the right to apply occurs”. The applicant in the present case must surely have been well aware that the Will would beindefatigably contested. His right to apply surely accrued on the death of the alleged Testatrix Dr. Raseel Kohil on 11.10.1987. Yet he chose not to initiate probate proceedings, and over a decade has passed thereafter.
8. There are other considerations which have weighed in my mind for rejecting the application. As has been mentioned, the present petition is for the grant of probate of a Will dated 23.9.1987 stated to have been executed by the mother of the petitioner. The Applicant is not a Class I heir of the deceased late Dr. (Mrs.) Raseel Kohli and would not be a neces-sary party to these proceedings. Even if the case of the Applicant is presumed to be correct, this does not necessarily mean that the present petition would be automatically rejected since the Will on which the peti-tion is founded may well be held to be genuine. The only question would be whether it is a last Will and Testament of the deceased.
9. It would, however, be of advantage to refer to the case of Razia Begum Vs. Sahebzadi Anwar Begum & Ors., and K.S. Abraham Vs.Mrs. Chandy Rosamma & Ors., . In the former case it was established that only if a party had a direct interest in the litigation, in contradistinction to a commercial interest, would it be justified to imp leaded it, thereby transgress the universally accepted legal concept of the Petitioner/Plaintiff being dominus litis. The latter case is one amongst many others where the distinction laid down by the Apex Court has been followed. Whether a person propounding another Will should be consid-ered to have a direct interest in the probate and administration petitions is a question which needs to be answered. Various courts have no doubt accepted that these actions relating to the succession to an Estate are on a different footing to a civil suit. The rationale must substantially be because of these proceedings having an efficacy in rem rather than in persona. Third party interests may not be in jeopardy because, inter alia, because of the application of the principles of res judicata in the latter category. Public citation, for this among other reasons is therefore car-ried out in probate/administrative succession petitions. It must be borne in mind, as enunciated by the Apex Court in Ishwardas Vs. Kanta Devi, , that “the Court of probate is primarily concerned with the question as to whether the document put forward as the last will and Testa-ment of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound dis-posing mind”. This principle was also extended to Letters of Administration by a Division Bench of the Calcutta High Court in Dhane Ali Vs. Sobhan Ali, .
10. Shri Mahinder Rana, Learned Counsel for the plaintiff, has relied on a number of judgments in support of his contention that the applicant is not a proper or necessary party to the present proceedings. In most of the cases, the Court had to consider the applicants being imp leaded as the Petitioners, and from this stand-point, the relevant concern was whether they had the requisite locus standi. The answer given by the Court was in the negative. This ratio would not apply where the applicant wishes to be imp leaded in the petition as a Respondent or Objector in order to resist the grant of probate to the will. The cases relied upon are as follows:-
(i) Raja Ram Adult Vs. Lakshmi Narain Adult, ; (ii) Inder Chand Nayyar Vs. Sarvadeshik Arya Pratinidhi Sabha & Anr., ; (iii) Edward Waston Coleston Vs. Mrs. Theresa Chitty & Ors. ; (iv) Durga Charan Vs. Smt. Bhudibala Naskar & Ors., ; (iv) Sarat Chandra Banerjee Vs. Naian Mohan Banerjee Vol. xxxvI Calcutta Services (1909) 799; (vi) Hari Pada Vs. Gobinda Chandra 1948, ILR Calcutta 300; (vii) Mahatma Vs. Thakur Prasad 1950 ILR Calcutta 653; (viii) Smt. Sulochana Debi Vs. Mt. Puranjaya, AIR (35) 1948 Patna 419; (ix) Hari Bhushan Datta Vs. Manmatha Nath Datta & Ors., AIR 1919 Calcutta 197; (x) Bhupati Charan Basu Vs. Chandi Charan Basu Mallick . I also do not consider it necessary to refer to the numerous precedents cited before me by Learned Counsel for the Petitioner on the general considerations for impleading parties under Order I Rule 10. These decision are so many and manifold that it would meaninglessly multiply the discussion.
11. The Applicant has no direct interest in the present controversy. Till date no petition has been filed for the grant of probate of Will dated 1.10.1987 propounded by the Applicant. In the present case, at the very least, an adverse inference as to the authenticity and genuineness of the Will dated 1.10.1987 should be drawn. There would be no justification, therefore, to permit an interpolar, who has not even bothered to take requisite steps for obtaining judicial approval for the Will propounded by him to be permitted in proceedings between siblings, pertaining to the estate of their mother. The correct approach, in consonance with justice, fair play and good conscience, would be to grant probate, if the Will is found to be genuine. Otherwise a grave miscarriage of justice would occur directly resulting in inordinate delay being caused. Thereafter if good cause is shown to the Court to stay the judgment if a subsequent Will has been put in for approval in the judicial pipeline. The following observa-tions of the Supreme Court in the case of Mrs. Elizabeth Antony Vs. Michael Charles John Chown Lengera, is relevant in this regard:
“The learned Counsel, however, lastly submitted that the peti- tioner in spite of having substantial interest in the estate is losing her right to prove that the alleged Will by Miss Zoe Enid Browne (sick) is not a genuine one and that it is a fictitious one. We must point out that by granting a probate, the Court is not deciding the disputes to the title. Even with regard to a probate granted, it can be revoked as provided under Sec. 263 of the Act in any one of the cases mentioned therein. But the learned Counsel for the petitioner submits that the findings of the Sub Court and the High Court regarding the caveat able interest will come in the petitioner’s way in seeking revocation of the grant of probate. It is needless to say that the findings regarding thecaveat able interest of the petitioner have a limit- ed effect and are relevant only to the extent of granting of probate. But they cannot deprive his right, if he has any, to invoke Sec. 263 of the Act it is up to the petitioner to satisfy the Court.”
12. It will also be relevant to mention that despite several; opportuni-ties granted for the filing of the original will dated 1.10.1987, this document has not seen the light of day. The application is, therefore, dismissed and since it is vexatious and calculated to cause delay it is dismissed with exemplary cost of Rs. 5000/-.