* 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. .... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether reporters of Local papers may be
allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported in
the Digest? Yes
: MOOL CHAND GARG,J.
1. This appeal arises out of an order dated 28.05.2005 passed by
the learned Additional District Judge dismissing the probate petition
filed by the appellants on the ground that the appellants had miserably
failed to prove the due execution, attestation and registration of the Will
in question . Also, they had not explained why the Will was registered
after seven years of its alleged execution and further failed to explain
the delay of more than nine years in filing the probate petition after the
death of the testatrix . The appellants thus being aggrieved by the order
has impugned it before us by way of the present appeal.
2. Briefly stating the facts of the case are; the appellants filed a
petition under Section 276 of Indian Succession Act, 1925 in November,
1994 for grant of probate of a Will dated 12.08.1971 of their mother
Late Smt. Puran Devi who expired on 20.02.1984. Her husband
predeceased her. She was survived by five sons and three daughters.
The property bequeathed under the Will in question comprises of a
FAO No. 380-82/2005 Page 1 of 15
house bearing No. 6-A/46, WEA, Karol Bagh, New Delhi. The said
house is a 2 ½ storey built house.
3. The testatrix vide her Will dated 12.08.1971 had bequeathed the
ground floor in favour of her son Mr. Om Prakash Duggal, appellant
No.1 who has died and is now being represented by his legal heirs while
the first floor including Barsati Floor had been bequeathed in favour of
her other son appellant No.2, Mr. Vijay Prakash Duggal. The testatrix
had not given any share to her other children. The Will in question was
got registered by the testatrix in the office of Sub-Registrar, Asaf Ali
Road New Delhi during her lifetime on 21.02.1978 vide document No.
269, Book No. 3, Volume No. III on pages 121-122. All the other
children of the deceased testatrix except the legal heirs of her
predeceased son Ved Prakash Duggal had filed their no objections to
the grant of probate in respect of Will dated 12.08.1971 in favour of the
appellants.
4. In the objections filed by the legal heirs of Mr. Ved Prakash
Duggal, who are the respondents, it was alleged that the testatrix was
not competent to execute the Will in respect of the property bequeathed
under the said Will as it was a joint family property. It was further
alleged that the Will in question was not executed by the testatrix in a
sound and disposing mind as she was completely deaf in August 1971
and it was not possible for anybody to communicate with her as to
make her understand the Will and its contents.
5. Further, the respondents also challenged the execution, validity,
contents and due attestation of the alleged Will on the ground that the
testatrix did not know English Language and, therefore, could not have
understood the recitals contained in her said Will. Taking advantage of
this fact, the appellants had procured the Will from the testatrix
through misrepresentation as it was also evident from the recitals in the
Will where it was mentioned that Shri Ved Prakash Duggal and Sh.
Krishan Prakash Duggal had become owners of a plot in Safdarjung
Enclave and as such were not in need of the house in question and on
this ground her son Mr. Ved Prakash Duggal has been disinherited.
FAO No. 380-82/2005 Page 2 of 15
However, according to the respondents, the plot in Safdarjung Enclave
did not stand in the name of Ved Prakash Duggal rather its lease by the
Government was in the name of Mr. Krishan Prakash Duggal, hence the
appellants had deliberately misrepresented this fact to the testatrix.
6. The appellants filed their reply to the objections filed on behalf of
the legal heirs of the predeceased son of the testatrix, Mr. Ved Prakash
Duggal. The appellants have denied all the allegations contained in the
objections and in specific thereto they have reiterated, reasserted and
reaffirmed the averments contained in their petition to be correct.
7. From the pleadings of the parties, following issues were framed on
12.03.1996
1. Whether Smt. Puran Devi executed a valid Will dated
12.08.1971 in respect of property bearing No 6A/46, WEA,
Karol; Bagh, New Delhi in favour of the petitioners, as
alleged?
2. Whether petition has not been filed in accordance with law
for the reasons particularly disclosed in paras 2,3 and 4 of
the preliminary objections of written statement filed on
behalf of the objectors?
3. Whether Smt. PURAN devi was incompetent to execute the
Will in question as alleged in para 3 of reply on merits of
the objections?
4. Relief.
8. The Ld. ADJ also framed following additional issue on 20.12.2003
“Whether the petition is barred by limitation?”
9. In order to prove the Will in question, four witnesses had been
examined on behalf of the appellants. They were PW-1, Mr Krishan
Kumar Burman, one of the attesting witness of the Will in question,
PW-2 Mr R.C Sharma, a UDC from Record Room (Civil), Tis Hazari
Courts, PW-3 Mr Vijay Prakash Duggal appellant No 2 himself and PW-
4 Mr Surinder Kumar a LDC from the office of Sub Registrar-III, Asaf Ali
Road, New Delhi whose statement remained incomplete as he could not
FAO No. 380-82/2005 Page 3 of 15
produce the summoned record relating to the registration of the Will in
question.
10. On the other hand, the respondents did not produce any evidence
in support of their objections rather after they cross-examined the
appellant‟s witnesses extensively, they stopped appearing in the matter
and were proceeded ex-parte. As such there is no evidence in rebuttal
and the only evidence is the cross-examination of the witnesses of the
appellants while no evidences were led by the respondents in support of
their objections.
11. On the basis of the evidence recorded by the appellants, the
learned ADJ gave his findings regarding different issues. As far as issue
No.2 is concerned, it is based upon the pleadings of the
respondents/objector in preliminary objections No. 2, 3 and 4.
Considering the amendment made in the petition with the permission of
the Court and also the factum of property being located in Delhi and
testatrix also being expired in Delhi, the said issue was decided against
the objectors.
12. However, regarding limitation as the petition was filed by the
appellants after more than 9 years of the death of the testatrix, the Ld
ADJ had observed that:
“The testatrix had expired on 20.02.1984. The presnt petition for
probate was filed by the petitioners on 31.03.1993 i.e after more
than 9 years of her death. Article 137 of the Limitation Act which
is residuary article prescribes a limitation of three years for filing
of an application which is to be reckoned from the date the right to
apply accrues to the person propounding the Will. While framing
the additional issue of limitation, my Ld Predecessor Shri G.P
Mittal , ADJ Delhi had observed that the limitation in the present
case is a mixed question of fact and law and therefore gave an
opportunity to the petitioners to lead evidence on this point. The
petitioners have not led any evidence worth the name to show why
they took more than 9 years after the death of the testatrix in
filing the present probate petition particularly when as per
testimony of PW-2 Mr. R.C. Sharma. There was a dispute between
the parties with regard to the Will in question much prior to the
death of the testatrix. This shows that the petitioners were well
aware that there was a dispute regarding the authenticity of theFAO No. 380-82/2005 Page 4 of 15
Will of their deceased mother propounded by them in this case
immediately on the death of their mother on 20.02.1984. This
case on the point of limitation is covered by a judgment of Hon‟ble
Delhi High Court in Pamela Man Mohan Singh Vs State & Ors., 83
(2000) DLT 469. Under the circumstances, I hold that the present
petition is barred by limitation. This issue is accordingly decided
in favour of the objectors and against the petitioners.
13. As per Issues No 1 & 3, since both were inter connected hence
were dealt together and the relevant observations made by the ld ADJ
were as follows:-
“In the present case the petitioners have examined PW-1
Mr Krishan Kumar Burman, one of the attesting
witnesses of the Will in question. The statement of this
witness was recorded in two installments, firstly on
19.02.1997 and again on 20.05.1998. There was a gap of
about 15 months between the two dates of recording of
his statement. PW-1 Mr. Krishan Kumar Burman is the
son-in-law of the deceased testatrix. In his statement
recorded before the Court on the first date i.e.
19.02.1997, he categorically deposed that the testatrix
had not signed anywhere on her will in question in his
presence. He had further deposed on that day that he
had not inquired from the testatrix whether she had
signed on the document purported to be her will or not.
He also deposed on 19.02.1997 that the testatrix was of
sound disposing mind at the time of registration of
document before the Sub-Registrar but her mental
condition was not sound 7-8 years prior to her death. He
said that he was not in a position to identify the
signatures of the testatrix on her will dated 12.08.1971.
16. The ld. counsel for the petitioners cross examined PW-
1 Mr. Krishan Kumar Burman with the leave of the Court.
PW-1 was cross-examined by him after about 15 months on
12.05.1998. The petitioners‟ ld. counsel put the entire case
to this witness in the form of suggestions which he obviously
admitted. I am of the view that the answers given by the
witness namely PW-1 in reply to the leading suggestions are
of no consequence and the same do not prove the due
execution, attestation and registration of the will in question.
I have gone through the contents of the will Ex.PW1/1 and
at page 2 of the said will, there is a handwritten
endorsement in portion between Learned counsel for the
appellant to A2 in the hand of PW-1. There is no date below
the signatures of PW-1 on the said endorsement. PW-1 has
deposed before the Court on 19.02.1997 that he had not
drafted the said will Ex.PW1/1 as mentioned in portion
Learned counsel for the appellant to A2. This statement ofFAO No. 380-82/2005 Page 5 of 15
PW-1 runs contrary to the intrinsic evidence provided by the
will regarding its drafting contained in Ex.PW1/1. Although
the will Ex.PW1/1 is shown to had been executed by the
deceased testatrix in presence of two attesting witnesses
namely Smt. Kaushalya Devi and Mr. krishan Kumar
Burman but PW-1 Mr. Krishan Kumar Burman has no
where whispered in the whole of his testimony recorded on
19.02.1997 and 20.05.1998 about the presence of Smt.
Kaushilya Devi at the time of execution of the said will or her
signing the said will as its attesting witness. This shows that
PW-1 could not prove the due attestation of the will as
required by Section 63(c) of the Indian Succession Act, 1925.
17. According to PW-1 Mr. Burman both the petitioners
along with their other two brothers Mr. V.P. Duggal and Mr.
K.P. Duggal were present at the time will in question was
allegedly executed by the testatrix and according to him the
will was prepared on suggestions given by him to the
advocate through whom the will was got prepared. He has
deposed in his statement recorded on 20.05.1998 that he did
not remember the date when the will was written and he also
did not know as to who had drafted the said will. He also
could not tell as to who had typed the will in question. PW-1
Mr. Burman has admitted that the testatrix was hard of
hearing and was undergoing treatment for that ailment from
a Doctor whose name he could not tell. He also could not
tell for how long prior to execution of the will in question she
was undergoing treatment for her deafness. In his further
cross-examination recorded on 20.05.1998, he has deposed
that the writing contained in portion from point Learned
counsel for the appellant to A2 on will Ex.PW1/1 was written
by him in the office of Sub-Registrar, Asaf Ali Road, New
Delhi. It is a matter of record that the will Ex.PW1/1,
though it was allegedly executed by the testatrix on
12.08.1971 but it was got registered by her on 21.02.1978.
The statement of PW-1 that he had written the writing
contained in portion from Learned counsel for the appellant
to A2 in will Ex.PW1/1 in the office of Sub-Registrar, Asaf Ali
Road, New Delhi shows that the said writing was procured
from him after about 7 years of the alleged execution of the
Will. This also creates a doubt on its authenticity. PW-1 has
admitted in his cross that the testatrix did not know English
language. The will Ex.PW1/1 is couched in English
language and there is absolutely no evidence on record to
show as to whether anybody had explained the contents of
her will to her before her signatures were obtained on the
said will. This creates a strong suspicion about the
genuineness of the will propounded by the petitioners
particularly as the testatrix was hard of hearing. It was put
to PW-1 Mr. Burman in his cross examination that the
testatrix was not able to hear at all and could onlyFAO No. 380-82/2005 Page 6 of 15
understand by signs and lip reading of her near and dear
ones. He was asked what he had to say on this point. Pw-1
Mr. Burman replied to this suggestion by stating that the
testatrix could hear but she used to take some time and
necessity of repetition also used to arise. PW-1 could not tell
whether the testatrix had suffered a hip fracture in
March/April, 1969 and he stated that this fact must be
known to her family members. PW-1 Mr. Burman is a son-
in-law of the testatrix and it is strange that he did not know
that his mother-in-law had suffered a hip fracture in
March/April, 1969 as admitted by petitioner No.2 (PW-3) in
his evidence before the Court.
A careful scanning of the entire evidence of PW-1 Mr.
Burman would show that his testimony hardly inspires
confidence of the Court as it is full of contradictions on
material points discussed hereinabove and the same casts a
serious doubt on the genuineness of the will propounded by
the petitioners. It is further evident from the testimony of
Mr. Burman that the testatrix on account of her
deafness/hard of hearing was not capable of understanding
the nature and extent of disposition made by her in her will
in question and therefore for that reason also the will
propounded by the petitioners cannot be said to be a
genuine document. As per testimony of petitioner No.2 (PW-
3) both the petitioners had played an active role in the
alleged execution of will propounded by them. The testimony
of petitioner No.2 (PW-3) is hardly of any consequence after
we ignore the testimony of PW-1 Mr. Burman, one of the
attesting witnesses of the will in question.
18. In view of the above, I have no manner of doubt left in
my mind except to hold that the petitioners have miserably
failed to prove the due execution, attestation and registration
of the will in question. They have not explained why the will
was got registered after seven years of its alleged execution
and they have further failed to explain delay of more than
nine years after the death of the testatrix in filing of the
present probate petition. By no means the will Ex.pW1/1
can be said to be a last will and testament of the testatrix
late Smt. Puran Devi. Both these issues are decided
accordingly against the petitioners.
14. Thus, the learned ADJ dismissed the probate petition both on the
grounds of delay and lacuna in evidence regarding execution and
attestation of the Will in question as per requirement of law and the
Will being shrouded with suspicious circumstances. Hence the present
appeal.
FAO No. 380-82/2005 Page 7 of 15
15. Before us, the appellants have submitted that the said Will dated
12.08.1971 was a genuine Will, as the father of the respondents and
also one of the sons of the testatrix Late Shri Ved Prakash Duggal had
filed a suit in February, 1974 against the other sons and the testatrix
herself for cancellation of the Will in question for partition of properties
No 6A/46, W.E.A Karol Bagh, New Delhi, and plot No B-4/67,
Safdarjung Extension Residential Area, New Delhi claiming that the
said Will was executed by way of family arrangement but it did not
represent true state of affairs and therefore should be cancelled. The
suit was compromised vide application dated 16.03.1974 under which
Ved Prakash Duggal received Rs 25,ooo/and he relinquished all his
rights, interests and share in the said two properties.
16. The appellants also submit that the Will was registered during
the life time of testatrix. The attesting witnesses also appeared before
the Sub-Registrar and none of the children objected except the legal
heirs of Late Shri Ved Prakash Duggal who after the closure of the
appellant‟s evidence were proceeded ex-parte. Hence in such facts and
circumstances where the Will in question was in knowledge of all the
heirs of the testatrix in her life time itself which was by way of family
arrangement it could not be said that it was suspicious or not a
genuine document.
17. As regards to the second attesting witness who was the son-in-
law of the testatrix, Shri K.K.Burman PW-1, it is submitted by the
appellants that his statement was recorded on 19.02.1997 and
20.05.1998/10.03.1999 and though he was a close relation of all the
legal heirs of the late testatrix but he had neither any interest in the
property nor was he interested in the appellants. Further whenever any
family arrangement takes place, it was not uncommon that the relatives
assemble and give suggestions about settlement, hence any suggestion
given by the witness for drafting the Will which was adopted for
settlement of disputes amongst the heirs of the testatrix would not be
considered unnatural. Hence according to the appellants the witness
PW-1 was natural and unbiased witness.
FAO No. 380-82/2005 Page 8 of 15
18. The appellants further submit that in his statement recorded on
the second occasion, PW-1 K.K.Burman stated that the testatrix had
signed on the Will at points X,X-1 andX-2 in hispresence after
understanding the contents of the same. On the first occasion,
although he had identified signatiures of the testatrix on the said points
but had stated that she had not signed in his presence. Later he
explained this contradiction by stating that the Will was written twenty
five years back approximately and no lawyer had shown him the copy of
the Will, The appellants also submit that PW-1 in his statement on the
first occasion had stated that the testatrix was of sound disposing mind
at the time of the registration of the document before the Sub-Registrar
but her mental condition was not sound 7/8 years prior to her death.
There was no evidence in rebuttal.
19. As regards to the requirement of the attesting witness signing the
Will in the presence of the testatrix, the appellants submit that the
witness PW-1 in his cross-examination stated that his signature at
point A of the petition are his and that he signed it after going through
its contents. The witness‟s signature is under head”verification by
attesting witness” of the probate petition, reading: “I, KRISHAN Kumar
Burman, one of the witnesses to the Will and testimonies of the
testator, the late Smt. PURAN Devi mentioned in the above noted
petition, declare that I was present and saw the testator affix her
signature thereto and the witnesses also put signatures in her
presence”, there was no further cross-examination on this aspect. The
contents of this verification, thus form part of statement of the witness.
Moreso, in his entire cross-examination no question or suggestion was
put to PW-1 that Smt. Kaushalya Devi, the other attesting witness, was
not present at the time of execution of the Will. However, the appellant
Vijay Prakash Duggal as PW-2 in his statement deposed that Smt.
Kaushalya Devi had signed on the Will at point B and she had died in
the year 1993. Thus appellants submit that the requirements of Section
63 of the Indian Succession Act 1925, were duly satisfied.
FAO No. 380-82/2005 Page 9 of 15
20. Further on the issue of limitation, the appellants submit that the
testatrix died on 20.02.1984 and the probate petition was filed on
01.09.1993. The cause of action to apply for probate for the first time
arose on 20.02.1984, the date of death of the testatrix and was a
recurring one. Hence according to the appellants it arose on each day
entitling the appellants to file probate petition during the ensuing three
years continuously. Therefore the petition was filed within time.
21. The appellants have also relied upon following judgments :-
1. Kunvarjeet Singh Khandpur Vs Kirandeep Kaur, (2008) 8
SCC 463
2. Krishan Kumar Sharma Vs Rajesh Kumar Sharma 2009 (5)
Scale 286
3. S.S.Lal (Shri) Vs Shri Vishnu Mitter, 2004 V AD (Delhi) 509
4. Kale Vs Deputy Director, AIR 1976 SC 807
5. Shashi Kumar Banerjee Vs Subbodh Kumar Banerjee, AIR
1964 SC 807
6. Naresh Charan Vs Paresh Charan, AIR 1955 SC 363
7. Prithwis Kumar Mitra Vs Bibhuti Bhushan Mitra, (1966) ILR
Calcutta 408(DB)
8. Sher Muhammad Khan & Ors Vs Depurt Comm. Of
Bahraich, AIR 1920 Awadh 87 (DB)
9. Makhan Mal L. Ram Ditta Mal Vs Mst. Pritam Devi, AIR
1961 Punjab 411 (DB)
22. I have heard the learned counsel for the appellant and have gone
through the written submissions filed by them besides perusing the
record of the trial Court. I have also gone through the judgments cited
at the bar. At the very outset I would like to discuss the Kunvarjeet
Singh Khandpur (Supra ) case which has also been cited by the
appellants. The appellants relying upon a part of the judgment have
submitted that right to file the probate petition is a continuing right
which can be exercised at any time after death of the testator/ testatrix.
They have also submitted that the application merely seeks recognition
from court to perform a duty. However, according to me the appellants
have misconstrued the judgment inasmuch as the facts of the
FAO No. 380-82/2005 Page 10 of 15
abovementioned judgment were different from the facts of the case in
hand. In the Kunvarjeet Singh Khandpur (Supra) case, the Testator had
expired on 5.10.1995 and the petition under Section 278 of the
Succession Act 1925 for grant of letters of administration was filed on
7.08.2002. It was claimed that the probate petition was barred by
limitation. However both the Learned Additional District Judge as well
as the High Court held which was later upheld by the Supreme Court
that the cause of action arose when an earlier probate petition filed in
respect of the Will dated 09.09.1991 was withdrawn on 09.08.1999. The
probate petition filed on 07.08.2002 was within three years and
therefore was within time. Thus Article 137 of the Limitation Act had
clear application.
23. Though it is rightly been stated that an application is for the
court‟s permission to perform a legal duty created by a Will and is a
continuous right which can be exercised any time after the death of the
deceased but this right can be exercised as long as it survives. It is also
true that that the application can be filed beyond the period of 3 years
but such delay must be clearly explained. In the instant case, the
appellants had filed the probate petition after 9 years but had nowhere
explained the reason behind such a huge delay even though
opportunity was granted to the appellants. The relevant extract from
Kunvarjeet Singh Khandpur (Supra) case dealing with the application of
Article 137 of Limitation Act is quoted here under:-
“Two questions need to be addressed in this appeal. Firstly, about
the applicability of Article 137 of the Limitation Act and secondly,
even if it is applicable whether the petition was within time.
11. In Kerala SEB v. T.P. Kunhaliumma it was inter alia observed
as follows:
“18. The alteration of the division as well as the change in the
collocation of words in Article 137 of the Limitation Act, 1963
compared with Article 181 of the 1908 Limitation Act shows that
applications contemplated under Article 137 are not applications
confined to the Code of Civil Procedure. In the 1908 Limitation Act
there was no division between applications in specified cases and
other applications as in the 1963 Limitation Act. The words „any
other application‟ under Article 137 cannot be said on the
principle of ejusdem generis to be applications under the CivilFAO No. 380-82/2005 Page 11 of 15
Procedure Code other than those mentioned in Part I of the third
division. Any other application under Article 137 would be petition
or any application under any Act. But it has to be an application
to a court for the reason that Sections 4 and 5 of the 1963
Limitation Act speak of expiry of prescribed period when court is
closed and extension of prescribed period if the applicant or the
appellant satisfies the court that he had sufficient cause for not
preferring the appeal or making the application during such
period.
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 case3
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 application is made in
terms of Section 264 of the Act to the District Judge. Section 2(bb)
of the Act defines the District Judge to be the Judge of the
Principal Civil Court.
12. Further in S.S. Rathore v. State of M.P.:-
“5. Appellant‟s counsel placed before us the residuary Article 113
and had referred to a few decisions of some High Courts where in
a situation as here reliance was placed on that article. It is
unnecessary to refer to those decisions as on the authority of
the judgment of this Court in Pierce Leslie & Co. Ltd. v. Violet
Ouchterlony Wapshare5 it must be held that Article 113 of the Act
of 1963, corresponding to Article 120 of the old Act, is a general
one and would apply to suits to which no other article in the
Schedule applies.”
13. Article 137 of the Limitation Act reads as follows:
“Description of suit Period of limitation Time from which
period begins to run
137. Any other application for which no period of limitation is
provided elsewhere in this Division. Three years When the
right to apply accrues.”
The crucial expression in the petition (sic Article) is “right to
apply”. In view of what has been stated by this Court, Article 137
is clearly applicable to the petition for grant of letters of
administration. As rightly observed by the High Court in such
proceedings the application merely seeks recognition from theFAO No. 380-82/2005 Page 12 of 15
court to perform a duty and because of the nature of the
proceedings it is a continuing right. The Division Bench of the
Delhi High Court referred to several decisions. One of them was S.
Krishnaswami v. E. Ramiah6. In para 17 of the said judgment it
was noted as follows:
17. In a proceeding, or in other words, in an application filed for
grant of probate or letters of administration, no right is asserted or
claimed by the applicant. The applicant only seeks recognition of
the court to perform a duty. Probate or letters of administration
issued by a competent court is conclusive proof of the legal
character throughout the world. An assessment of the relevant
provisions of the Indian Succession Act, 1925 does not convey a
meaning that by the proceedings filed for grant of probate or
letters of administration, no rights of the applicant are settled or
secured in the legal sense. The author of the testament has cast
the duty with regard 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, 1963Though 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 Kerala SEB case2.
15. Similarly reference was made to a decision of the Bombay
High Court in Vasudev Daulatram Sadarangani v. Sajni Prem
Lalwani7. Para 16 reads as follows: (AIR p. 270)“16. Rejecting Mr Dalpatrai‟s contention, I summarise my
conclusions thus–
(a) under the Limitation Act no period is advisedly prescribed
within which an application for probate, letters of administration
or succession certificate must be made;
(b) the assumption that under Article 137 the right to apply
necessarily accrues on the date of the death of the deceased, is
unwarranted;
FAO No. 380-82/2005 Page 13 of 15
(c) such an application is for the court‟s permission to perform a
legal duty created by a will or for recognition as a testamentary
trustee and is a continuous right which can be 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 from the date
of the deceased‟s death;
(e) delay beyond 3 years after the deceased‟s death would arouse
suspicion and greater the delay, greater would be the suspicion;
(f) such delay must be explained, but cannot be equated with the
absolute bar of limitation; and
(g) once execution and attestation are proved, suspicion of delay
no longer operates.”
Conclusion (b) is not correct while Conclusion (c) is the correct
position of law.
16. In view of the factual scenario, the right to apply actually
arose on 9-8-1999 when the proceedings were withdrawn by Smt
Nirmal Jeet Kaur. Since the petition was filed within three years,
the same was within time and therefore the appeal is without
merit, deserves dismissal, which we direct but in the
circumstances without any order as to costs.
24. In view of the aforesaid, the appellants were required to explain
the delay of 9 years which they have filed today. Further the
reproduction of the statement of the witnesses examined by the
appellants to prove the attestation and execution of the Will goes to
show that:
i) The only attesting witness, namely, Sh. K.K. Burman firstly
denied the signatures of the testatrix on the Will itself when his
examination-in-chief was recorded and it is only on the
suggestion given by the appellant during his cross-examination
after about 2 years that he remembered the testatrix signing the
Will in question.
ii) The second attesting witness has not been examined by the
appellant, the attestation of the Will by the second witness has
not been even whispered by Sh. K.K. Burman in his examination-
FAO No. 380-82/2005 Page 14 of 15
in-chief or in cross-examination which is an essential
requirement to prove attestation in terms of Section 63(c) of the
Indian Succession Act.
iii) The Will is in English. Admittedly, the testatrix was a deaf person
and there is nothing on record to show as to whether she knew
English language or not. Rather, Sh. K.K. Burman accepted that
the deceased testatrix did not know English. In these
circumstances, it was necessary for the appellant to prove that
the deceased testatrix knew the contents of the Will and had
signed the same after understanding the contents thereof.
iv) There is some endorsement on the Will (portion A1 to A2) which
admittedly has been done at the time of the registration of the
Will i.e. 7 years after its execution. This also was required to be
proved in the same manner as the Will is required to be proved.
This again has not been done.
25. In these circumstances, even though the respondent/objector had
not come in the witness box to support their objections though have
cross-examined the witnesses of the appellant, the Court while granting
the probate is obliged to see that there are no legal impediments in the
grant of the probate. In this case, the delay in filing the probate petition
as well as non-compliance of Section 63(c) of the Indian Succession Act
are good reasons for refusal of the grant of probate petition and, thus, I
do not find any reason to interfere with the decision taken by the
learned ADJ. The appeal is accordingly dismissed with no orders as to
costs.
26. TCR be sent back along with a copy of this order.
MOOL CHAND GARG,J
MARCH 31, 2011
‘sg/anb’
FAO No. 380-82/2005 Page 15 of 15