{"id":65633,"date":"2011-03-31T00:00:00","date_gmt":"2011-03-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/yogesh-duggal-and-ors-vs-state-ors-on-31-march-2011"},"modified":"2016-09-16T08:49:25","modified_gmt":"2016-09-16T03:19:25","slug":"yogesh-duggal-and-ors-vs-state-ors-on-31-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/yogesh-duggal-and-ors-vs-state-ors-on-31-march-2011","title":{"rendered":"Yogesh Duggal And Ors. vs State & Ors. on 31 March, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
Yogesh Duggal And Ors. vs State & Ors. on 31 March, 2011<\/div>\n
Author: Mool Chand Garg<\/div>\n
*               IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n+                          FAO.No. 380-82\/2005\n\n%                                               Reserved On: 22.03.2011\n                                                Decided On: 31.03.2011\n\nYOGESH DUGGAL AND ORS.                                    ....... Appellants\n               Through: Mr. K.R. Gupta, Adv.\n\n                                 Versus\n\nSTATE & ORS.                                              .... Respondents\n                      Through: None\n\nCORAM:\nHON'BLE MR. JUSTICE MOOL CHAND GARG\n\n1.    Whether reporters of Local papers may be\n      allowed to see the judgment?                             Yes\n2.    To be referred to the reporter or not?                   Yes\n3.    Whether the judgment should be reported in\n      the Digest?                                              Yes\n\n:      MOOL CHAND GARG,J.\n<\/pre>\n
1.     This appeal arises out of an order dated 28.05.2005 passed by
\nthe learned Additional District Judge dismissing the probate petition
\nfiled by the appellants on the ground that the appellants had miserably
\nfailed to prove the due execution, attestation and registration of the Will
\nin question . Also, they had not explained why the Will was registered
\nafter seven years of its alleged execution and further failed to explain
\nthe delay of more than nine years in filing the probate petition after the
\ndeath of the testatrix . The appellants thus being aggrieved by the order
\nhas impugned it before us by way of the present appeal.\n<\/p>\n
2.     Briefly stating the facts of the case are; the appellants filed a
\npetition under Section 276 of Indian Succession Act, 1925 in November,
\n1994 for grant of probate of a Will dated 12.08.1971 of their mother
\nLate Smt. Puran Devi who expired on 20.02.1984.             Her husband
\npredeceased her. She was survived by five sons and three daughters.
\nThe property bequeathed under the Will in question comprises of a<\/p>\n
FAO No. 380-82\/2005                                            Page 1 of 15<\/span>
\n house bearing No. 6-A\/46, WEA, Karol Bagh, New Delhi. The said
\nhouse is a 2 \u00bd storey built house.\n<\/p>\n
3.     The testatrix vide her Will dated 12.08.1971 had bequeathed the
\nground floor in favour of her son Mr. Om Prakash Duggal, appellant
\nNo.1 who has died and is now being represented by his legal heirs while
\nthe first floor including Barsati Floor had been bequeathed in favour of
\nher other son appellant No.2, Mr. Vijay Prakash Duggal. The testatrix
\nhad not given any share to her other children. The Will in question was
\ngot registered by the testatrix in the office of Sub-Registrar, Asaf Ali
\nRoad New Delhi during her lifetime on 21.02.1978 vide document No.
\n269, Book No. 3, Volume No. III on pages 121-122. All the other
\nchildren of the deceased testatrix except the legal heirs of her
\npredeceased son Ved Prakash Duggal had filed their no objections to
\nthe grant of probate in respect of Will dated 12.08.1971 in favour of the
\nappellants.\n<\/p>\n
4.     In the objections filed by the legal heirs of Mr. Ved Prakash
\nDuggal, who are the respondents, it was alleged that the testatrix was
\nnot competent to execute the Will in respect of the property bequeathed
\nunder the said Will as it was a joint family property. It was further
\nalleged that the Will in question was not executed by the testatrix in a
\nsound and disposing mind as she was completely deaf in August 1971
\nand it was not possible for anybody to communicate with her as to
\nmake her understand the Will and its contents.\n<\/p>\n
5.     Further, the respondents also challenged the execution, validity,
\ncontents and due attestation of the alleged Will on the ground that the
\ntestatrix did not know English Language and, therefore, could not have
\nunderstood the recitals contained in her said Will. Taking advantage of
\nthis fact, the appellants had procured the Will from the testatrix
\nthrough misrepresentation as it was also evident from the recitals in the
\nWill where it was mentioned that Shri Ved Prakash Duggal and Sh.
\nKrishan Prakash Duggal had become owners of a plot in Safdarjung
\nEnclave and as such were not in need of the house in question and on
\nthis ground her son Mr. Ved Prakash Duggal has been disinherited.\n<\/p>\n
FAO No. 380-82\/2005                                          Page 2 of 15<\/span><\/p>\n
 However, according to the respondents, the plot in Safdarjung Enclave
\ndid not stand in the name of Ved Prakash Duggal rather its lease by the
\nGovernment was in the name of Mr. Krishan Prakash Duggal, hence the
\nappellants had deliberately misrepresented this fact to the testatrix.\n<\/p>\n
6.     The appellants filed their reply to the objections filed on behalf of
\nthe legal heirs of the predeceased son of the testatrix, Mr. Ved Prakash
\nDuggal. The appellants have denied all the allegations contained in the
\nobjections and in specific thereto they have reiterated, reasserted and
\nreaffirmed the averments contained in their petition to be correct.\n<\/p>\n
7.     From the pleadings of the parties, following issues were framed on
\n12.03.1996<\/p>\n
       1.      Whether Smt. Puran Devi executed a valid Will dated
\n               12.08.1971 in respect of property bearing No 6A\/46, WEA,
\n               Karol; Bagh, New Delhi in favour of the petitioners, as
\n               alleged?\n<\/p>\n
       2.      Whether petition has not been filed in accordance with law
\n               for the reasons particularly disclosed in paras 2,3 and 4 of
\n               the preliminary objections of written statement filed on
\n               behalf of the objectors?\n<\/p>\n
        3.     Whether Smt. PURAN devi was incompetent to execute the
\n               Will in question as alleged in para 3 of reply on merits of
\n               the objections?\n<\/p>\n
       4.      Relief.\n<\/p>\n
8.     The Ld. ADJ also framed following additional issue on 20.12.2003<\/p>\n
       “Whether the petition is barred by limitation?”\n<\/p>\n
9.     In order to prove the Will in question, four witnesses had been
\nexamined on behalf of the appellants. They were PW-1, Mr Krishan
\nKumar Burman, one of the attesting witness of the Will in question,
\nPW-2 Mr R.C Sharma, a UDC           from Record Room (Civil), Tis Hazari
\nCourts, PW-3 Mr Vijay Prakash Duggal appellant No 2 himself and PW-
\n4 Mr Surinder Kumar a LDC from the office of Sub Registrar-III, Asaf Ali
\nRoad, New Delhi whose statement remained incomplete as he could not<\/p>\n
FAO No. 380-82\/2005                                             Page 3 of 15<\/span>
\n produce the summoned record relating to the registration of the Will in
\nquestion.\n<\/p>\n
10.    On the other hand, the respondents did not produce any evidence
\nin support of their objections rather after they cross-examined the
\nappellant\u201fs witnesses extensively, they stopped appearing in the matter
\nand were proceeded ex-parte. As such there is no evidence in rebuttal
\nand the only evidence is the cross-examination of the witnesses of the
\nappellants while no evidences were led by the respondents in support of
\ntheir objections.\n<\/p>\n
11.    On the basis of the evidence recorded by the appellants, the
\nlearned ADJ gave his findings regarding different issues. As far as issue
\nNo.2    is   concerned,    it   is   based   upon     the   pleadings     of    the
\nrespondents\/objector in preliminary objections No. 2, 3 and 4.
\nConsidering the amendment made in the petition with the permission of
\nthe Court and also the factum of property being located in Delhi and
\ntestatrix also being expired in Delhi, the said issue was decided against
\nthe objectors.\n<\/p>\n
12.    However, regarding limitation as the petition was filed by the
\nappellants after more than 9 years of the death of the testatrix, the Ld
\nADJ had observed that:\n<\/p>\n
       “The testatrix had expired on 20.02.1984. The presnt petition for
\n       probate was filed by the petitioners on 31.03.1993 i.e after more
\n       than 9 years of her death. Article 137 of the Limitation Act which
\n       is residuary article prescribes a limitation of three years for filing
\n       of an application which is to be reckoned from the date the right to
\n       apply accrues to the person propounding the Will. While framing
\n       the additional issue of limitation, my Ld Predecessor Shri G.P
\n       Mittal , ADJ Delhi had observed that the limitation in the present
\n       case is a mixed question of fact and law and therefore gave an
\n       opportunity to the petitioners to lead evidence on this point. The
\n       petitioners have not led any evidence worth the name to show why
\n       they took more than 9 years after the death of the testatrix in
\n       filing the present probate petition particularly when as per
\n       testimony of PW-2 Mr. R.C. Sharma. There was a dispute between
\n       the parties with regard to the Will in question much prior to the
\n       death of the testatrix. This shows that the petitioners were well
\n       aware that there was a dispute regarding the authenticity of the<\/p>\n
FAO No. 380-82\/2005                                                  Page 4 of 15<\/span>
\n        Will of their deceased mother propounded by them in this case
\n       immediately on the death of their mother on 20.02.1984. This
\n       case on the point of limitation is covered by a judgment of Hon\u201fble
\n       Delhi High Court in Pamela Man Mohan Singh Vs State & Ors., 83
\n       (2000) DLT 469. Under the circumstances, I hold that the present
\n       petition is barred by limitation. This issue is accordingly decided
\n       in favour of the objectors and against the petitioners.\n<\/p><\/blockquote>\n
13.    As per Issues No 1 & 3, since both were inter connected hence
\nwere dealt together and the relevant observations made by the ld ADJ
\nwere as follows:-\n<\/p>\n
       “In the present case the petitioners have examined PW-1
\n       Mr Krishan Kumar Burman, one of the attesting
\n       witnesses of the Will in question. The statement of this
\n       witness was recorded in two installments, firstly on
\n       19.02.1997 and again on 20.05.1998. There was a gap of
\n       about 15 months between the two dates of recording of
\n       his statement. PW-1 Mr. Krishan Kumar Burman is the
\n       son-in-law of the deceased testatrix. In his statement
\n       recorded before the Court on the first date i.e.
\n       19.02.1997, he categorically deposed that the testatrix
\n       had not signed anywhere on her will in question in his
\n       presence. He had further deposed on that day that he
\n       had not inquired from the testatrix whether she had
\n       signed on the document purported to be her will or not.
\n       He also deposed on 19.02.1997 that the testatrix was of
\n       sound disposing mind at the time of registration of
\n       document before the Sub-Registrar but her mental
\n       condition was not sound 7-8 years prior to her death. He
\n       said that he was not in a position to identify the
\n       signatures of the testatrix on her will dated 12.08.1971.\n<\/p><\/blockquote>\n
       16. The ld. counsel for the petitioners cross examined PW-
\n       1 Mr. Krishan Kumar Burman with the leave of the Court.
\n       PW-1 was cross-examined by him after about 15 months on
\n       12.05.1998. The petitioners\u201f ld. counsel put the entire case
\n       to this witness in the form of suggestions which he obviously
\n       admitted. I am of the view that the answers given by the
\n       witness namely PW-1 in reply to the leading suggestions are
\n       of no consequence and the same do not prove the due
\n       execution, attestation and registration of the will in question.
\n       I have gone through the contents of the will Ex.PW1\/1 and
\n       at page 2 of the said will, there is a handwritten
\n       endorsement in portion between Learned counsel for the
\n       appellant to A2 in the hand of PW-1. There is no date below
\n       the signatures of PW-1 on the said endorsement. PW-1 has
\n       deposed before the Court on 19.02.1997 that he had not
\n       drafted the said will Ex.PW1\/1 as mentioned in portion
\n       Learned counsel for the appellant to A2. This statement of<\/p>\n
FAO No. 380-82\/2005                                                Page 5 of 15<\/span>
\n        PW-1 runs contrary to the intrinsic evidence provided by the
\n       will regarding its drafting contained in Ex.PW1\/1. Although
\n       the will Ex.PW1\/1 is shown to had been executed by the
\n       deceased testatrix in presence of two attesting witnesses
\n       namely Smt. Kaushalya Devi and Mr. krishan Kumar
\n       Burman but PW-1 Mr. Krishan Kumar Burman has no
\n       where whispered in the whole of his testimony recorded on
\n       19.02.1997 and 20.05.1998 about the presence of Smt.
\n       Kaushilya Devi at the time of execution of the said will or her
\n       signing the said will as its attesting witness. This shows that
\n       PW-1 could not prove the due attestation of the will as
\n       required by Section 63(c) of the Indian Succession Act, 1925.\n<\/p><\/blockquote>\n
       17. According to PW-1 Mr. Burman both the petitioners
\n       along with their other two brothers Mr. V.P. Duggal and Mr.
\n       K.P. Duggal were present at the time will in question was
\n       allegedly executed by the testatrix and according to him the
\n       will was prepared on suggestions given by him to the
\n       advocate through whom the will was got prepared. He has
\n       deposed in his statement recorded on 20.05.1998 that he did
\n       not remember the date when the will was written and he also
\n       did not know as to who had drafted the said will. He also
\n       could not tell as to who had typed the will in question. PW-1
\n       Mr. Burman has admitted that the testatrix was hard of
\n       hearing and was undergoing treatment for that ailment from
\n       a Doctor whose name he could not tell. He also could not
\n       tell for how long prior to execution of the will in question she
\n       was undergoing treatment for her deafness. In his further
\n       cross-examination recorded on 20.05.1998, he has deposed
\n       that the writing contained in portion from point Learned
\n       counsel for the appellant to A2 on will Ex.PW1\/1 was written
\n       by him in the office of Sub-Registrar, Asaf Ali Road, New
\n       Delhi. It is a matter of record that the will Ex.PW1\/1,
\n       though it was allegedly executed by the testatrix on
\n       12.08.1971 but it was got registered by her on 21.02.1978.
\n       The statement of PW-1 that he had written the writing
\n       contained in portion from Learned counsel for the appellant
\n       to A2 in will Ex.PW1\/1 in the office of Sub-Registrar, Asaf Ali
\n       Road, New Delhi shows that the said writing was procured
\n       from him after about 7 years of the alleged execution of the
\n       Will. This also creates a doubt on its authenticity. PW-1 has
\n       admitted in his cross that the testatrix did not know English
\n       language.      The will Ex.PW1\/1 is couched in English
\n       language and there is absolutely no evidence on record to
\n       show as to whether anybody had explained the contents of
\n       her will to her before her signatures were obtained on the
\n       said will.     This creates a strong suspicion about the
\n       genuineness of the will propounded by the petitioners
\n       particularly as the testatrix was hard of hearing. It was put
\n       to PW-1 Mr. Burman in his cross examination that the
\n       testatrix was not able to hear at all and could only<\/p>\n
FAO No. 380-82\/2005                                             Page 6 of 15<\/span>
\n        understand by signs and lip reading of her near and dear
\n       ones. He was asked what he had to say on this point. Pw-1
\n       Mr. Burman replied to this suggestion by stating that the
\n       testatrix could hear but she used to take some time and
\n       necessity of repetition also used to arise. PW-1 could not tell
\n       whether the testatrix had suffered a hip fracture in
\n       March\/April, 1969 and he stated that this fact must be
\n       known to her family members. PW-1 Mr. Burman is a son-
\n       in-law of the testatrix and it is strange that he did not know
\n       that his mother-in-law had suffered a hip fracture in
\n       March\/April, 1969 as admitted by petitioner No.2 (PW-3) in
\n       his evidence before the Court.\n<\/p><\/blockquote>\n
       A careful scanning of the entire evidence of PW-1 Mr.
\n       Burman would show that his testimony hardly inspires
\n       confidence of the Court as it is full of contradictions on
\n       material points discussed hereinabove and the same casts a
\n       serious doubt on the genuineness of the will propounded by
\n       the petitioners. It is further evident from the testimony of
\n       Mr. Burman that the testatrix on account of her
\n       deafness\/hard of hearing was not capable of understanding
\n       the nature and extent of disposition made by her in her will
\n       in question and therefore for that reason also the will
\n       propounded by the petitioners cannot be said to be a
\n       genuine document. As per testimony of petitioner No.2 (PW-\n<\/p><\/blockquote>\n
       3) both the petitioners had played an active role in the
\n       alleged execution of will propounded by them. The testimony
\n       of petitioner No.2 (PW-3) is hardly of any consequence after
\n       we ignore the testimony of PW-1 Mr. Burman, one of the
\n       attesting witnesses of the will in question.\n<\/p><\/blockquote>\n
       18. In view of the above, I have no manner of doubt left in
\n       my mind except to hold that the petitioners have miserably
\n       failed to prove the due execution, attestation and registration
\n       of the will in question. They have not explained why the will
\n       was got registered after seven years of its alleged execution
\n       and they have further failed to explain delay of more than
\n       nine years after the death of the testatrix in filing of the
\n       present probate petition. By no means the will Ex.pW1\/1
\n       can be said to be a last will and testament of the testatrix
\n       late Smt. Puran Devi.       Both these issues are decided
\n       accordingly against the petitioners.\n<\/p><\/blockquote>\n
14.    Thus, the learned ADJ dismissed the probate petition both on the
\ngrounds of delay and lacuna in evidence regarding execution and
\nattestation of the Will in question as per requirement of law and the
\nWill being shrouded with suspicious circumstances. Hence the present
\nappeal.\n<\/p>\n
FAO No. 380-82\/2005                                            Page 7 of 15<\/span><\/p>\n
 15.    Before us, the appellants have submitted that the said Will dated
\n12.08.1971 was a genuine Will, as the father of the respondents and
\nalso one of the sons of the testatrix Late Shri Ved Prakash Duggal had
\nfiled a suit in February, 1974 against the other sons and the testatrix
\nherself for cancellation of the Will in question for partition of properties
\nNo 6A\/46, W.E.A Karol Bagh, New Delhi, and plot No B-4\/67,
\nSafdarjung Extension Residential Area, New Delhi claiming that the
\nsaid Will was executed by way of family arrangement but it did not
\nrepresent true state of affairs and therefore should be cancelled. The
\nsuit was compromised vide application dated 16.03.1974 under which
\nVed Prakash Duggal received Rs 25,ooo\/and he relinquished all his
\nrights, interests and share in the said two properties.\n<\/p>\n
16.    The appellants also submit that the Will was registered during
\nthe life time of testatrix. The attesting witnesses also appeared before
\nthe Sub-Registrar and none of the children objected except the legal
\nheirs of Late Shri Ved Prakash Duggal who after the closure of the
\nappellant\u201fs evidence were proceeded ex-parte. Hence in such facts and
\ncircumstances where the Will in question was in knowledge of all the
\nheirs of the testatrix in her life time itself which was by way of family
\narrangement it could not be said that it was suspicious or not a
\ngenuine document.\n<\/p>\n
17.    As regards to the second attesting witness who was the son-in-
\nlaw of the testatrix, Shri K.K.Burman PW-1, it is submitted by the
\nappellants that his statement was recorded on 19.02.1997 and
\n20.05.1998\/10.03.1999 and though he was a close relation of all the
\nlegal heirs of the late testatrix but he had neither any interest in the
\nproperty nor was he interested in the appellants. Further whenever any
\nfamily arrangement takes place, it was not uncommon that the relatives
\nassemble and give suggestions about settlement, hence any suggestion
\ngiven by the witness for drafting the Will which was adopted for
\nsettlement of disputes amongst the heirs of the testatrix would not be
\nconsidered unnatural. Hence according to the appellants the witness
\nPW-1 was natural and unbiased witness.\n<\/p>\n
FAO No. 380-82\/2005                                             Page 8 of 15<\/span><\/p>\n
 18.    The appellants further submit that in his statement recorded on
\nthe second occasion, PW-1 K.K.Burman stated that the testatrix had
\nsigned on the Will at points X,X-1 andX-2 in hispresence after
\nunderstanding the contents of the same. On the first occasion,
\nalthough he had identified signatiures of the testatrix on the said points
\nbut had stated that she had not signed in his presence. Later he
\nexplained this contradiction by stating that the Will was written twenty
\nfive years back approximately and no lawyer had shown him the copy of
\nthe Will, The appellants also submit that PW-1 in his statement on the
\nfirst occasion had stated that the testatrix was of sound disposing mind
\nat the time of the registration of the document before the Sub-Registrar
\nbut her mental condition was not sound 7\/8 years prior to her death.
\nThere was no evidence in rebuttal.\n<\/p>\n
19.    As regards to the requirement of the attesting witness signing the
\nWill in the presence of the testatrix, the appellants submit that the
\nwitness PW-1          in his cross-examination stated that his signature at
\npoint A of the petition are his and that he signed it after going through
\nits contents. The witness\u201fs signature is under head”verification by
\nattesting witness” of the probate petition, reading: “I, KRISHAN Kumar
\nBurman, one of the witnesses to the Will and testimonies of the
\ntestator, the late Smt. PURAN Devi mentioned in the above noted
\npetition, declare that I was present and saw the testator affix her
\nsignature thereto and the witnesses also put signatures in her
\npresence”, there was no further cross-examination on this aspect. The
\ncontents of this verification, thus form part of statement of the witness.
\nMoreso, in his entire cross-examination no question or suggestion was
\nput to PW-1 that Smt. Kaushalya Devi, the other attesting witness, was
\nnot present at the time of execution of the Will. However, the appellant
\nVijay Prakash Duggal as PW-2 in his statement deposed that Smt.
\nKaushalya Devi had signed on the Will at point B and she had died in
\nthe year 1993. Thus appellants submit that the requirements of Section
\n63 of the Indian Succession Act 1925, were duly satisfied.\n<\/p>\n
FAO No. 380-82\/2005                                             Page 9 of 15<\/span><\/p>\n
 20.    Further on the issue of limitation, the appellants submit that the
\ntestatrix died on 20.02.1984 and the probate petition was filed on
\n01.09.1993. The cause of action to apply for probate for the first time
\narose on 20.02.1984, the date of death of the testatrix and was a
\nrecurring one. Hence according to the appellants it arose on each day
\nentitling the appellants to file probate petition during the ensuing three
\nyears continuously. Therefore the petition was filed within time.\n<\/p>\n
21.    The appellants have also relied upon following judgments :-\n<\/p>\n
       1.      Kunvarjeet Singh Khandpur Vs Kirandeep Kaur, (2008) 8
\n               SCC 463<\/p>\n<\/blockquote>\n
       2.      Krishan Kumar Sharma Vs Rajesh Kumar Sharma 2009 (5)
\n               Scale 286<\/p>\n<\/blockquote>\n
       3.      S.S.Lal (Shri) Vs Shri Vishnu Mitter, 2004 V AD (Delhi) 509<\/p>\n<\/blockquote>\n
       4.      Kale Vs Deputy Director, AIR 1976 SC 807\n<\/p><\/blockquote>\n
       5.      Shashi Kumar Banerjee Vs Subbodh Kumar Banerjee, AIR
\n               1964 SC 807<\/p>\n<\/blockquote>\n
       6.      Naresh Charan Vs Paresh Charan, AIR 1955 SC 363<\/p>\n<\/blockquote>\n
       7.      Prithwis Kumar Mitra Vs Bibhuti Bhushan Mitra, (1966) ILR
\n               Calcutta 408(DB)<\/p>\n<\/blockquote>\n
       8.      Sher Muhammad Khan & Ors Vs Depurt Comm. Of
\n               Bahraich, AIR 1920 Awadh 87 (DB)<\/p>\n<\/blockquote>\n
       9.      Makhan Mal L. Ram Ditta Mal Vs Mst. Pritam Devi, AIR
\n               1961 Punjab 411 (DB)<\/p>\n<\/blockquote>\n
22.    I have heard the learned counsel for the appellant and have gone
\nthrough the written submissions filed by them besides perusing the
\nrecord of the trial Court. I have also gone through the judgments cited
\nat the bar. At the very outset I would like to discuss the Kunvarjeet
\nSingh Khandpur (Supra ) case which has also been cited by the
\nappellants. The appellants relying upon a part of the judgment have
\nsubmitted that right to file the probate petition is a continuing right
\nwhich can be exercised at any time after death of the testator\/ testatrix.
\nThey have also submitted that the application merely seeks recognition
\nfrom court to perform a duty. However, according to me the appellants
\nhave misconstrued the judgment inasmuch as the facts of the<\/p>\n
FAO No. 380-82\/2005                                             Page 10 of 15<\/span>
\n abovementioned judgment were different from the facts of the case in
\nhand. In the Kunvarjeet Singh Khandpur (Supra) case, the Testator had
\nexpired on 5.10.1995 and the petition under Section 278 of the
\nSuccession Act 1925 for grant of letters of administration was filed on
\n7.08.2002. It was claimed that the probate petition was barred by
\nlimitation. However both the Learned Additional District Judge as well
\nas the High Court held which was later upheld by the Supreme Court
\nthat the cause of action arose when an earlier probate petition filed in
\nrespect of the Will dated 09.09.1991 was withdrawn on 09.08.1999. The
\nprobate petition filed on 07.08.2002 was within three years and
\ntherefore was within time. Thus Article 137 of the Limitation Act had
\nclear application.\n<\/p>\n
23.    Though it is rightly been stated that an application is for the
\ncourt\u201fs permission to perform a legal duty created by a Will and is a
\ncontinuous right which can be exercised any time after the death of the
\ndeceased but this right can be exercised as long as it survives. It is also
\ntrue that that the application can be filed beyond the period of 3 years
\nbut such delay must be clearly explained. In the instant case, the
\nappellants had filed the probate petition after 9 years but had nowhere
\nexplained the reason behind such              a huge delay even though
\nopportunity was granted to the appellants. The relevant extract from
\nKunvarjeet Singh Khandpur (Supra) case dealing with the application of
\nArticle 137 of Limitation Act is quoted here under:-\n<\/p>\n
       “Two questions need to be addressed in this appeal. Firstly, about
\n       the applicability of Article 137 of the Limitation Act and secondly,
\n       even if it is applicable whether the petition was within time.\n<\/p><\/blockquote>\n
       11. In Kerala SEB v. T.P. Kunhaliumma it was inter alia observed
\n       as follows:\n<\/p><\/blockquote>\n
       “18. The alteration of the division as well as the change in the
\n       collocation of words in Article 137 of the Limitation Act, 1963
\n       compared with Article 181 of the 1908 Limitation Act shows that
\n       applications contemplated under Article 137 are not applications
\n       confined to the Code of Civil Procedure. In the 1908 Limitation Act
\n       there was no division between applications in specified cases and
\n       other applications as in the 1963 Limitation Act. The words \u201eany
\n       other application\u201f under Article 137 cannot be said on the
\n       principle of ejusdem generis to be applications under the Civil<\/p>\n
FAO No. 380-82\/2005                                                 Page 11 of 15<\/span>
\n        Procedure Code other than those mentioned in Part I of the third
\n       division. Any other application under Article 137 would be petition
\n       or any application under any Act. But it has to be an application
\n       to a court for the reason that Sections 4 and 5 of the 1963
\n       Limitation Act speak of expiry of prescribed period when court is
\n       closed and extension of prescribed period if the applicant or the
\n       appellant satisfies the court that he had sufficient cause for not
\n       preferring the appeal or making the application during such
\n       period.\n<\/p><\/blockquote>\n
       The conclusion we reach is that Article 137 of the 1963 Limitation
\n       Act will apply to any petition or application filed under any Act to
\n       a civil court. With respect we differ from the view taken by the
\n       two-Judge Bench of this Court in Athani Municipal Council case3
\n       and hold that Article 137 of the 1963 Limitation Act is not
\n       confined to applications contemplated by or under the Code of
\n       Civil Procedure. The petition in the present case was to the
\n       District Judge as a court. The petition was one contemplated by
\n       the Telegraph Act for judicial decision. The petition is an
\n       application falling within the scope of Article 137 of the 1963
\n       Limitation Act.”\n<\/p><\/blockquote>\n
       In terms of the aforesaid judgment any application to civil court
\n       under the Act is covered by Article 137. The application is made in
\n       terms of Section 264 of the Act to the District Judge. Section 2(bb)
\n       of the Act defines the District Judge to be the Judge of the
\n       Principal Civil Court.\n<\/p><\/blockquote>\n
       12. Further in S.S. Rathore v. State of M.P.<\/a>:-\n<\/p><\/blockquote>\n
       “5. Appellant\u201fs counsel placed before us the residuary Article 113
\n       and had referred to a few decisions of some High Courts where in
\n       a situation as here reliance was placed on that article. It is
\n       unnecessary to      refer to those decisions as on the authority of
\n       the judgment of this Court in Pierce Leslie & Co. Ltd. v. Violet
\n       Ouchterlony Wapshare5<\/a> it must be held that Article 113 of the Act
\n       of 1963, corresponding to Article 120 of the old Act, is a general
\n       one and would apply to suits to which no other article in the
\n       Schedule applies.”\n<\/p><\/blockquote>\n
       13. Article 137 of the Limitation Act reads as follows:\n<\/p><\/blockquote>\n
       “Description of suit Period        of limitation Time     from    which
\n       period begins to run<\/p>\n<\/blockquote>\n
       137. Any other application for which no period of limitation is
\n       provided elsewhere in this Division. Three years When       the
\n       right to apply accrues.”\n<\/p><\/blockquote>\n
       The crucial expression in the petition (sic Article) is “right to
\n       apply”. In view of what has been stated by this Court, Article 137
\n       is clearly applicable to the petition for grant of letters of
\n       administration. As rightly observed by the High Court in such
\n       proceedings the application merely seeks recognition from the<\/p>\n
FAO No. 380-82\/2005                                                     Page 12 of 15<\/span>
\n        court to perform a duty and because of the nature of the
\n       proceedings it is a continuing right. The Division Bench of the
\n       Delhi High Court referred to several decisions. One of them was S.
\n       Krishnaswami v. E. Ramiah6. In para 17 of the said judgment it
\n       was noted as follows:\n<\/p><\/blockquote>\n
       17. In a proceeding, or in other words, in an application filed for
\n       grant of probate or letters of administration, no right is asserted or
\n       claimed by the applicant. The applicant only seeks recognition of
\n       the court to perform a duty. Probate or letters of administration
\n       issued by a competent court is conclusive proof of the legal
\n       character throughout the world. An assessment of the relevant
\n       provisions of the Indian Succession Act, 1925 does not convey a
\n       meaning that by the proceedings filed for grant of probate or
\n       letters of administration, no rights of the applicant are settled or
\n       secured in the legal sense. The author of the testament has cast
\n       the duty with regard to the administration of his estate, and the
\n       applicant for probate or letters of administration only seeks the
\n       permission of the court to perform that duty. There is only a
\n       seeking of recognition from the court to perform the duty. That
\n       duty is only moral and it is not legal. There is no law which
\n       compels the applicant to file the proceedings for probate or letters
\n       of administration. With a view to discharge the moral duty, the
\n       applicant seeks recognition from the court to perform the duty. It
\n       will be legitimate to conclude that the proceedings filed for grant of
\n       probate or letters of administration is not an action in law. Hence,
\n       it is very difficult to and it will not be in order to construe the
\n       proceedings for grant of probate or letters of administration as
\n       applications coming within the meaning of an \u201eapplication\u201f under
\n       Article 137 of the Limitation Act, 1963<\/p>\n
       Though the nature of the petition has been rightly described by
\n       the High Court, it was not correct in observing that the application
\n       for grant of probate or letters of administration is not covered by
\n       Article 137 of the Limitation Act. Same is not correct in view of
\n       what has been stated in Kerala SEB case2.\n<\/p><\/blockquote>\n
       15. Similarly reference was made to a decision of the Bombay
\n       High Court in Vasudev Daulatram Sadarangani v. Sajni Prem
\n       Lalwani7. Para 16 reads as follows: (AIR p. 270)<\/p>\n
       “16. Rejecting Mr Dalpatrai\u201fs contention, I summarise my
\n       conclusions thus–\n<\/p><\/blockquote>\n
       (a) under the Limitation Act no period is advisedly prescribed
\n       within which an application for probate, letters of administration
\n       or succession certificate must be made;\n<\/p><\/blockquote>\n
       (b) the assumption that under Article 137 the right to apply
\n       necessarily accrues on the date of the death of the deceased, is
\n       unwarranted;\n<\/p><\/blockquote>\n
FAO No. 380-82\/2005                                                   Page 13 of 15<\/span><\/p>\n
        (c) such an application is for the court\u201fs permission to perform a
\n       legal duty created by a will or for recognition as a testamentary
\n       trustee and is a continuous right which can be exercised any time
\n       after the death of the deceased, as long as the right to do so
\n       survives and the object of the trust exists or any part of the trust,
\n       if created, remains to be executed;\n<\/p><\/blockquote>\n
       (d) the right to apply would accrue when it becomes necessary to
\n       apply which may not necessarily be within 3 years from the date
\n       of the deceased\u201fs death;\n<\/p><\/blockquote>\n
       (e) delay beyond 3 years after the deceased\u201fs death would arouse
\n       suspicion and greater the delay, greater would be the suspicion;\n<\/p><\/blockquote>\n
       (f) such delay must be explained, but cannot be equated with the
\n       absolute bar of limitation; and<\/p>\n<\/blockquote>\n
       (g) once execution and attestation are proved, suspicion of delay
\n       no longer operates.”\n<\/p><\/blockquote>\n
       Conclusion (b) is not correct while Conclusion (c) is the correct
\n       position of law.\n<\/p><\/blockquote>\n
       16. In view of the factual scenario, the right to apply actually
\n       arose on 9-8-1999 when the proceedings were withdrawn by Smt
\n       Nirmal Jeet Kaur. Since the petition was filed within three years,
\n       the same was within time and therefore the appeal is without
\n       merit, deserves dismissal, which we direct but in the
\n       circumstances without any order as to costs.\n<\/p><\/blockquote>\n
24.    In view of the aforesaid, the appellants were required to explain
\nthe delay of 9 years which they have filed today.                  Further the
\nreproduction of the statement of the witnesses examined by the
\nappellants to prove the attestation and execution of the Will goes to
\nshow that:\n<\/p>\n
i)     The only attesting witness, namely, Sh. K.K. Burman firstly
\n       denied the signatures of the testatrix on the Will itself when his
\n       examination-in-chief was recorded and it is only on the
\n       suggestion given by the appellant during his cross-examination
\n       after about 2 years that he remembered the testatrix signing the
\n       Will in question.\n<\/p>\n
ii)    The second attesting witness has not been examined by the
\n       appellant, the attestation of the Will by the second witness has
\n       not been even whispered by Sh. K.K. Burman in his examination-\n<\/p>\n
FAO No. 380-82\/2005                                                  Page 14 of 15<\/span><\/p>\n
          in-chief     or   in   cross-examination   which   is   an      essential
\n         requirement to prove attestation in terms of Section 63(c) of the
\n         Indian Succession Act.\n<\/p>\n
iii)     The Will is in English. Admittedly, the testatrix was a deaf person
\n         and there is nothing on record to show as to whether she knew
\n         English language or not. Rather, Sh. K.K. Burman accepted that
\n         the deceased testatrix did not know English.                   In these
\n         circumstances, it was necessary for the appellant to prove that
\n         the deceased testatrix knew the contents of the Will and had
\n         signed the same after understanding the contents thereof.\n<\/p>\n
iv)      There is some endorsement on the Will (portion A1 to A2) which
\n         admittedly has been done at the time of the registration of the
\n         Will i.e. 7 years after its execution. This also was required to be
\n         proved in the same manner as the Will is required to be proved.
\n         This again has not been done.\n<\/p>\n
25.      In these circumstances, even though the respondent\/objector had
\nnot come in the witness box to support their objections though have
\ncross-examined the witnesses of the appellant, the Court while granting
\nthe probate is obliged to see that there are no legal impediments in the
\ngrant of the probate. In this case, the delay in filing the probate petition
\nas well as non-compliance of Section 63(c) of the Indian Succession Act
\nare good reasons for refusal of the grant of probate petition and, thus, I
\ndo not find any reason to interfere with the decision taken by the
\nlearned ADJ. The appeal is accordingly dismissed with no orders as to
\ncosts.\n<\/p>\n
26.      TCR be sent back along with a copy of this order.\n<\/p>\n
                                                      MOOL CHAND GARG,J
\nMARCH 31, 2011
\n‘sg\/anb’<\/p>\n
FAO No. 380-82\/2005                                                   Page 15 of 15<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Yogesh Duggal And Ors. vs State & Ors. on 31 March, 2011 Author: Mool Chand Garg * IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO.No. 380-82\/2005 % Reserved On: 22.03.2011 Decided On: 31.03.2011 YOGESH DUGGAL AND ORS. ……. Appellants Through: Mr. K.R. Gupta, Adv. Versus STATE & ORS. …. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-65633","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nYogesh Duggal And Ors. vs State & Ors. on 31 March, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/yogesh-duggal-and-ors-vs-state-ors-on-31-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Yogesh Duggal And Ors. vs State & Ors. on 31 March, 2011 - 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