FRANCIS Vs. ANTONY

JUDGEMENT

(1.) Revision petitioner is the third defendant in O.S. 10 of 1987 of the Additional District Court, Trichur. He challenges the order In I.A. 551 of 1990 allowing amendment of the plaint. The suit was originally filed as O.P. 2 of 1980 for the grant of probate along with the will attached thereto. As the revision petitioner contested the petition, it was converted as an Original Suit. Respondent (plaintiff) wanted amendment of the plaint to alter the prayer as one for grant of letters of administration instead of grant of probate. The Additional District Judge allowed the petition overruling the objection of the revision petitioner that the suit is barred by limitation under Art.137 of the Limitation Act.

(2.) Revision Petitioner contended that as the suit is barred by limitation as the respondent did not file it within three years of the death of the testator as provided under Art.137 of the Limitation Act the amendment should not have been allowed. Respondent's contention is that for the grant of probate or letters of administration no period of limitation is provided either under the Indian Succession act or Limitation Act.

(3.) Counsel for the revision petitioner relied on Kerala State Electricity Board v. J. P. Kunhaliumma (AIR 1977 S.C. 282) and contended that Art.137 of the Limitation Act would apply to any petition or application filed under any Act to a civil court and that being the law there is no merit in the contention of the respondent that for probate and letters of administration proceedings there is no period of limitation. That was a case where compensation was claimed for the trees out and removed from the property by the Kerala State Electricity Board. The date of cutting was well known to the petitioner who claimed enhanced compensation. So necessarily he ought to have made the claim within three years as held by the Supreme Court. In a probate or letters of administration proceedings it may not be known to the applicant about the existence of a will immediately after the death of the testator. There may be a case where the applicant became aware of the existence of the will long after the death of the testator. It is indeed difficult to hold that proceedings for probate or letters of administration should be initiated within three years of the death of the testator or else it would be barred.