HARI NARAIN Vs. SUBHASH CHANDER

JUDGEMENT

(1.) What is the period of limitation for filing an application under S.263 of the Succession Act for the revocation of a probate, is the precise question that needs to be settled by this Division Bench, on a reference. The astounding proposition of law put forth by the learned counsel for the respondent-applicant that no period of limitation governs such an application and its sustenance on the basis of certain observations in Aswini Kumar Chakravarty v. Sukhaharan Chakravarty, AIR 1931 Cal 717, lead to the making of the present reference. The following facts bring out clearly the controversy in question : - Hari Narain appellant (since dead and now represented by his legal representatives) succeeded in obtaining a probate from the Court of the District Judge, Ambala on 4th November, 1969 to the estate of his father Piara Lal on the basis of the latter's will dated 25th July, 1962. This probate has since been revoked by the said Court on an application dated 12th March, 1974 filed by respondent Subhash Chander son of a pre-deceased daughter of Piara Lal. The grounds pleaded for this revocation were that at the time of grant of the probate on 4th November, 1969, he was a minor and during those proceedings, neither he was represented by any guardian ad litem, nor was any citation served or effected on him. The lower Court has accepted these pleas and as a result of the same, has passed the order under appeal revoking the probate. The case of the appellant all through was that due citation had been effected on the father of the respondent. He, however, did not dispute the factum of respondent's minority at the relevant time. Further plea raised on his behalf was that the application of the respondent dated 12th March, 1974 was not filed within the period of limitation. The lower Court after recording the evidence of the parties treated the application as within limitation primarily for the reason that on 4th of November, 1969, that is, the date on which the probate had been granted, the respondent was a minor and he acquired knowledge about the same only in February, 1974 and thus, his application dated 12th March, 1974 was not barred by any period of limitation.

(2.) Shri Liberhan, the learned counsl for the appellant, contends with some force that Art.137 of the Limitation Act, 1963 (the Act for brevity's sake) clearly covers the facts of the instant case and in the light of the period prescribed therein, the application could be filed by the respondent at the most within a period of 3 years from the date of his attaining majority which he admittedly did on 28th March, 1970. The stand of the learned counsel for the respondent, as already indicated, is that there is no prescribed period of limitation for filing such an application for the revocation of a probate. In order to sustain this argument of his, the learned counsel has referred to certain judgments delivered earlier to the coming into force of the Act, but we find it wholly unnecessary to refer to these judgments, as we are firmly of the opinion that the controversy in hand practically stands resolved by the authoritative pronouncement of their Lordships of the Supreme Court in Kerala State Electricity Board v. T. P. Kunhaliumma, AIR 1977 SC 282. The question raised in that case was, whether the residury Art.137 of the Act would apply to the proceedings filed under Ss.10 and 16(5) of the Telegraph Act, 1885, read with S.51 of the Electricity Act, 1910, relating to the claim of compensation. While answering the question, their Lordships, after a thorough analysis of the provisions of the Act, held :

(3.) In the light of the discussion above, we while setting aside the order under appeal, dismiss the application of the respondent as barred by time, but with no order as to costs. Application dismissed.