SHARDA DEVI Vs. SANTOSH KUMAR SINHA

JUDGEMENT

(1.) HEARD .

(2.) THIS is an application by the petitioner against the order passed by the District Judge, Patna in Revocation Case No. 109 of 2000 by which the learned District Judge has dismissed the case as barred by limitation. The parties were noticed and have appeared and argued at length.

(3.) THE case of petitioner was that in course of mutation proceedings recently she carne to know of the said proceedings and, as such, being the daughter of late Ishwari Prasad, she filed the Probate Case. On notice being issued, the opposite party who had been granted the Letter of Administration for the estate of late Ishwari Prasad appeared and objected. He clearly stated that the petitioner had knowledge of these proceedings as far back as in 1981 which is evident from an earlier revocation proceedings initiated by her being Revocation Case No. 59 of 1976. in respect of another Letter of Administration. The learned counsel appearing for the opposite party has referred to order dated 3.4.1981 passed by the learned Additional District Judge III, Patna in Revocation Case No.59 of 1976 between the parties. In the said order, it is clearly noted that the opposite party had filed a Letter of Administration Case No. 21 of 1976 on basis of will executed by late Ishwari Prasad and which was pending. This, it is submitted, was a clear notice to the petitioner of the proceedings for grant of letter of Administration but she did not take any action to safeguard her interest, if she really was the daughter of late Ishwari Prasad. It is submitted on behalf of opposite party that having come to know of the said proceedings and taken no action even after Letter of Administration was granted in the said proceedings on 17.12.1987 nor having contested any proceedings by entering a caveat, the petitioner had waived her right or for that matter acquiescence and, therefore, the delay in challenge was fatal. He also referred to Article 100. of the Limitation Act. On the contrary, the learned counsel for the petitioner has relied on two judgments of this Court for the proposition that mere delay in filing revocation application, as contemplated under Section 263 of the Indian Succession Act, is not fatal. I have examined the said two judgments. The first judgment is Mt. Sheopati Kuer Vs. Ramakant Dikshit and Ors., AIR (34) 1947 Patna 434 which, in paragraph -21 of the reports, holds that delay in applying for revocation of probate is fatal only when from circumstances attendant upon the delay an inference of waiver can reasonably be made mere delay, without more is not bar to revocation. It goes further to say that acquiescence may be inferred from circumstances. In my opinion, the judgment is of no help to the petitioner. If anything it is an authority which can be used against the petitioner for in the present case, it is clear that the petitioner had full knowledge of the Letter of Administration Case in respect of the will or her father as far back as in 1981 though she was aware of the legal consequences as she was fighting and contesting another Probate Case. By filing revocation application, she chose to ignore the said proceedings. This is clearly a case of waiver if not acquiescence. Similarly, in the case of Mutukdhari Singh Vs. Smt. Prem Debi and Ors., AIR 1959 Patna 570, with reference to the said earlier decision, the same proposition has been reiterated. The answer would also be the same as given above. On the other hand, the learned counsel for opposite party has relied on a Division Bench judgment of the Punjab and Haryana High Court in the case of Hari Narain and Ors. Vs. Subhash Chander and Ors., AIR 1985 Punjab and Haryana 211 to counter the argument to the petitioner that the provisions of Limitation Act are inapplicable to proceedings for grant of Letter of Administration. The said High Court has rightly held that in terms of Section 29(2) of the Limitation Act, the provisions of Limitation Act do not stand excluded in its application to Letter of Administration proceedings. The said Court has also rightly' noticed that it is Article 137 of the Limitation Act that would apply as revocation application is not a suit or a petition it is an application. To that extent, the learned District Judge here appears to be not correct in holding that it is Article 100 of the Limitation Act that would apply.