RAMJI GOALA Vs. DISTRICT JUDGE, DHUBRI

JUDGEMENT

(1.) THIS appeal under Section 299 of the Indian Succession Act 1925 challenging the judgment and order dated 24.9.2002 passed by the learned District Judge, Guwahati in Misc(P) Case No. 221 of 2002 dismissing the probate application on the ground of limitation.

(2.) THE appellant Ramji Goala filed application under Section 276 of the Indian Succession Act, 1925 in the court of learned District Judge, Dhubri stating that deceased Ram Janam Tiwari being owner in possession of the properties described in the schedule to the said application died on 11.7.1994 in Bihar. He was a permanent resident of Goala patty, Dhubri Town and had executed a Will bequeathing all his properties in favour of the petitioner. The appellant, therefore, prayed that the court should pass necessary order for granting probate in respect of the Will. Misc.(J) Case No. 221 of 2002 was registered on the basis of the application. It appears that no objection was filed from any quarter challenging the execution of the Will and so learned court permitted the appellant to lead evidence in the case. Petitioner examined three witnesses including himself and exhibited the Will as Exhibit -1. Appellant also proved that testator Ram Janam Tiwari died on 11.7.1994. The probate application was filed on 28.11.2001 and it did not contain any explanation as to why appeal would not be filed within the statutory period of limitation. Under such circumstances, the learned District Judge rejected the probate application on the ground of limitation. This judgment and order has been passed on 24.9.2002 which has been brought under challenge in the present appeal.

(3.) THERE is no denying the fact that cause of action of the probate application arose on 11.7.1994 upon death of the testator. An application for probate was admittedly filed on 28.11.2001 and thus it was beyond the statutory period of limitation. Mr. S. Gogoi, learned counsel for the appellant would argue that probate of a Will is covered by special legislation under the Indian Succession Act and since there is no period of limitation prescribed in it, the learned trial court committed error in importing Article 137 of the Limitation Act in dismissing the application of the petitioner and so the impugned judgment and order is liable to be set aside and quashed and the matter is liable to be remanded for trial on merit. The submissions appear to be tempting at first blush. But this point is no longer res -integra. The Hon'ble Supreme Court held in Kerala State Electricity Board vs. T.P. Kunhaliumma reported in : 1976 (4) SCC 634 that Article 137 of the Limitation Act applies in case of probate. Same law has been subsequently followed by the Hon'ble Supreme Court in Kanwarjit Singh Dhillon vs. Hardayal Singh Dhillon reported in : 2007 (11) SCC 357, Basanti Devi vs. Ravi Prakash Ram Prakash jaiswal reported in : 2008 (1) SCC 267, Krishan Kumar Sharma vs. Rajesh Kumar Sharma reported in : 2009 (11) SCC 537, Kunwarjeet Singh Khandpur vs. Kirandeep Kaur reported in : 2008 (8) SCC 463. All these cases were considered by this court in the case of Kamakhya Prasad Gupta & Anr. vs. Jibon Lal Gupta reported in : 2010 (6) GLR 467. In that case, this court discussed the law laid down by Hon'ble Supreme Court since 1976 to 2010 and held the right to apply for probate accrues on the date of death of the testator and that an application for probate shall be made within three years from the date of death of the deceased in respect of whose will, the probate is applied for. A probate application is also covered by the provision of Article 137. Having so found it was held that any probate application filed after expiry of period of 3 years from the date of accrual of the cause of action will be barred by limitation. However, it was observed that since an application under Section 276 does not assume character of suit before it is contested, such application can be entertained provided sufficient cause is furnished for not filing the application in time. On receipt of plaint, a memorandum of appeal or an application, a court is duty bound under Section 3(1) of the Limitation Act to examine as to whether the same has been presented in time irrespective of whether defence has been taken by other side on the point of limitation. If it is found upon bare perusal of the pleading that the suit, appeal or application is apparently time barred in that view, the trial court is duty bound to reject the application at the threshold. Here in this case even in the absence of written statement, the learned District Judge exercised jurisdiction vested under section 3(1) of Limitation Act and rejected the probate application on the ground of limitation. Such an exercise is permissible and it requires no interference by this court.