ANUPAM MULLICK Vs. RAJ MULLICK

JUDGEMENT

(1.) The present appeal assails the order dated 02.03.2020 passed in TEST.CAS 74/2017, wherein the learned Single Judge has rejected the submission of the objector/appellant herein on issue no.1 regarding the petition being barred by limitation, by holding that the said issue could not be decided as a preliminary issue.

(2.) The appellant's plea before the learned Single Judge-that the petition preferred by the respondent, Ms. Raj Mullick seeking probate of the will dated 24.05.1996 of her deceased sister Mrs. Rani Mullick was barred by limitation, was premised on his claim that the said will had already been disputed by the appellant way back in the year 1998. According to the appellant, since the said will has been disputed in the year 1998 itself, the period of limitation of 3 years-as prescribed under Article 137 of the Limitation Act, had started to run against the respondent in 1998 and, therefore, the testamentary case filed in the year 2017 was well beyond the period of limitation. In support of this plea, the appellant/objector had placed reliance on a Division Bench judgment of this Court in Pratap Singh and Anr. vs. State and Anr. , 2010 118 DRJ 534 (DB)

(3.) The learned Single Judge while rejecting this preliminary objection, firstly placed reliance on a decision of the Supreme Court in Kunvarjeet Singh Khandpur vs. Kirandeep Kaur and Ors. , 2008 8 SCC 463, and secondly on the facts of the case. She observed that the question as to whether the said issue could be decided at the preliminary stage, when evidence had yet to be led by the parties, had to be examined with reference to the pleadings in the petition. By referring to Paras 2 and 13 of the petition preferred by respondent no.1, which inter alia refer to the holographic will of the testatrix, and that she was compelled to file the probate petition before the High Court to be able to deal with the debentures, shares and bonds etc. of certain companies, which were held by the testatrix Ms.Rani Mullick, the learned Single Judge held that at this stage, without the parties having led their evidence, it could not be determined whether the pleas taken by the petitioner were unwarranted and therefore, opined that the parties would have to lead their evidence in relation to the said issue.