KANWAL MALHOTRA Vs. STATE

JUDGEMENT

(1.) This is an application under Order VII R. 11 of the Code of Civil Procedure, 1908 (herein after referred to as CPC ). The application has been filed on behalf of the objector essentially on the ground that the application for grant of probate in respect of the alleged last will left by one late Mr.K.S.Kulkarni is barred by law in terms of the provisions of Order VII R. 11 (d). The provision provides that the plaint shall be rejected inter alia where the suit appears from the statement in the plaint to be barred by any law. In this case the objector submits that the application for grant of probate is barred by limitation. He submitted that the period of limitation prescribed for such an application would be that as prescribed by article 137 of the Schedule to the Limitation Act, 1963. Article 137 reads as under:-

(2.) According to Mr.Aggarwal, the learned counsel appearing on behalf of the objector, the said Mr.K.S. Kulkarni having admittedly expired on 17.10.1994 the application for probate in respect of the alleged will left by him which is dated 4.11.90/2.12.90 and which purports to have been registered on 10.12.90 ought to have been filed within three years of the death of the said Mr.K.S.Kulkarni. According to Mr.Aggarwal, this is so because the right to apply accrued when Mr.K.S.Kulkarni died on 17.10.94. Accordingly the application ought to have been filed within three years thereof i.e. at least by 17.10.97. He further submits that these facts are clear from the application for grant of probate and that it is also an admitted fact that the application itself was filed much later i.e. on 12.2.2002. Therefore, the application is clearly, according to Mr.Aggarwal, barred by time and accordingly the same ought to be rejected under Order VII R. 11 (d) of the CPC. Mr.Aggarwal further submitted that the right to apply accrued on the death of Mr.K.S.Kulkarni itself because on that date there was already litigation pending between the parties. The plaintiff had filed a suit being Suit No. 534/93 seeking declaration that this very will was a valid one and for other related reliefs. The objector had also filed a suit earlier in 1986 for possession of the very property which has been made the subject matter of the alleged will. The suit was for possession and it was directed against the said Mr.K.S.Kulkarni. That suit was originally numbered as IPA 11/1986 was subsequently re-numbered as Suit No. 2781/97. Both these suits, according to Mr.Aggarwal, were pending on the date on which Mr.Kulkarni passed away i.e., 17.10.94. Therefore, according to him, immediately upon his death the right to apply for probate in respect of the last alleged will of Mr.Kulkarni accrued to the plaintiff and the present application for probate not having been filed within three years thereof was clearly barred by time. Mr.Aggarwal while arguing this application under Order VII R. 11 submits that there are other grounds mentioned in support of this application under Order VII R. 11. However, he is not pressing those grounds at this stage which shall be taken up at the time of disposal of the main probate case and he would like to reserve his rights in respect thereof. The learned counsel appearing for the petitioner had no objection to the reservation of such rights in respect of the other grounds raised by Mr.Aggarwal and agreed for disposal of this application mainly on the ground of limitation. Of course, also reserving his rights to raise such arguments as may be available to him at the time when those grounds are taken up.

(3.) At the outset it was pointed out by learned counsel for the petitioner that the question of applicability of Article 137 of the Schedule to the Limitation Act, 1963 to applications for grant of probate under Section 276 of the Indian Succession Act, 1925 stands settled by a decision of a Division Bench of this Court in the case of S.S.Lal vs. Vishnu Mitter Govil :112 (2004) DLT 877. The learned counsel took me through the entire decision.