RAMKAMAL BANIK SAHA Vs. SYAM SUNDAR BANIK SAHA

JUDGEMENT

(1.) This appeal is directed against a decree of dismissal made in a suit for construction of a will. One Krishna Prosad Saha Banik, the father of the plaintiff's and the first defendant made a testamentary disposition of his properties on the 30 April, 1897. Probate was taken by the executors on the 13 September, 1897. The present suit was instituted on the 15 August, 1919, for construction of the will and for a declaration that the testator had died intestate with regard to all his properties, except what he had specifically bequeathed to his widow, and that the plaintiffs had thereupon become entitled to two-thirds share of the estate left by their father by right of inheritance. The suit was defended on a variety of grounds which need not be enumerated for our present purpose. It is sufficient to state that the suit has been dismissed as barred by limitation. The Subordinate Judge has held that right to sue for declaration that the father of the plaintiffs had died intestate and that they had thereupon taken shares as heirs to the properties left by him, must be deemed to have arisen from the time when the first defendant, the surviving executor, put in an application for probate of the will or at the latest when the will was proved.

(2.) The point in controversy in the present appeal is whether this view of the law is well- founded. The plaintiffs have not disputed that the period of limitation applicable is that provided in Art. 120 of the second schedule to the Indian Limitation Act, which provides that a suit for which no period of limitation is provided elsewhere in the schedule must be instituted within 6 years from the date when the right to sue accrues. The defendant also has invoked the aid of the article; but the parties are not agreed as to the interpretation of the provision in the third column namely, what is the point of time when the right to sue accrues in cases of this description where the plaintiff seeks to have construction of a will. The question appears to have been considered by this Court in the case of Chukkun Lal Roy V/s. Lalit Mohan Roy (1893) 20 Cal. 906. In that case, a suit was instituted for the construction of a will alleged to have been executed by Saroda Prosad Roy on the 17 September, 1865. A codicil was added on 18 March, 1868, just before the death of the testator. As the will had been executed before the Hindu Wills Act came into operation no application for probate was made. The suit for construction was commenced on the 13 February, 1889. The plaintiff prayed as follows : namely, first that the will and codicil of the late Saroda Prosad Roy be construed and the rights and interests of Lalit Mohan and of all other parties, if any, respectively, under the will be declared; secondly that, subject to such dispositions as may be determined by the Court to have been validly made by the will, the rights and interests of the plaintiffs as heirs to the estate of Saroda Prosad Roy, deceased, under the Mitakshara law of inheritance; may be declared; and, thirdly, that all necessary declarations and directions may be made and such reliefs may be granted as under the circumstances of the case may be fit. The suit was defended on the ground, amongst others, that the claim was barred by limitation. Thereupon the third issue was raised in the following terms : Is the suit barred by limitation. The District Judge discussed the question in the following terms : "Regarding the suit as one for a declaration the question of limitation is not so easy to decide, for I find no provision in the Act expressly referring to suits of this kind generally, though there are provisions respecting some particular kinds of such suits. Art. 120 of the second schedule is the only one which seems to apply. This provides a limitation of six years from the date when the right to sue accrues, for all suits for which no period of limitation is provided elsewhere in this schedule." The question then is, when the right to sue accrued. For the solution of this question, the District Judge relied upon the judgment of Sir Richard Garth, C.J., in the case of Kristomoni Dasi v. Nripendra Krishna F.A. 29 and 30 of 1884 (unreported), where the Chief Justice had made the following observation : "In my opinion, under Section 42, Specific Relief Act, a person who is entitled to any right to property may, as a rule, institute a suit against any other person for a declaratory decree on any occasion when by word or deed, such other person may deny his right within the meaning of that section. There is, therefore, in the present case a recurrent cause of action on every refusal or neglect to pay over the surplus profits of the estate. Not only Section 23 but also Section 10 of the Limitation Act applies to the case and the suit is in my opinion not barred as regards any part of the relief sought." The District Judge then proceeded to construe the will, and his decree embodied a declaration as to the effect of the provisions contained in the testatment. An appeal was next preferred to this Court. Mr. Woodroffe who appeared on behalf of the respondent contended that the view taken by the District Judge upon the question of limitation was not correct. He formulated his argument in the following terms: "As to limitation I say six years from the death of the testator is allowed. Art. 141 does not interfere with this, as I have the estate against the heiress. My estate was adverse to her when I kept her out. I have held for myself from the death of Saroda; and if the will does not give me an interest, I have been in possession for more than 20 years before suit." In reply Mr. Charles Paul argued that as to limitation the suit was one for construction of a will, and the cause of action did not arise when the widow was alive; the plaintiffs asked for a declaration and for an account. Mr. Justice Ghose who delivered the judgment of the Court overruled the contention that the suit was barred by limitation and observed as follows : "The suit is not for possession but for construction of the will and codicil, and for a declaration of the plaintiff's rights, as heirs to Saroda Prosad. Except in the few cases especially provided for in the Limitation Act (e.g., a suit to obtain a declaration that an adoption is invalid, or that an alienation by a widow is not binding on a reversioner) a suit for a declaratory relief of this nature cannot be held to be barred, so long as the right to the property, in respect of which the declaration is sought, is a subsisting right. So long as the widow was alive the plaintiffs right as reversionary heirs was subsisting right. The right to bring a suit to construe the will and codicil and for a declaration of the plaintiff's right, is a continuing right and may be claimed within the statutory period (whether it be 12 years or 6 years under Art. 120) from the time when the plaintiffs become entitled to possession or other consequential relief. This suit having been instituted within six years is amply within time." The Court then proceeded to construe the provisions of the will and adopted a construction contrary to that which had found favour with the District Judge. The matter was next taken on appeal to the Judicial Committee : Lalit Mohun Singh Roy V/s. Chukhan Lal Roy [1897] 24 Cal. 834. The question of limitation does not appear to have been argued, although it was the interest of the respondent to support the judgment of the High Court on that ground. The judgment delivered by Lord Davey deals with the question of construction and the view adopted by the Judicial Committee was that the construction adopted by the High Court could not be supported. The Judicial Committee accordingly proceeded to restore the decree of the District Court with a slight variation. It is inconceivable that the Judicial Committee should have considered the case on the merits, if the suit was obviously barred by limitation. We are consequently of opinion that the decision of this Court in Chukku Lal V/s. Lalit Mohun Roy (1893) 20 Cal. 906, is an authority for the proposition that a suit for construction of a will is governed by Art. 120 of the schedule to the Limitation Act, but that the right to sue does not accrue from the death of the testator or the date of the probate of the will. The case clearly shows that so long at least as the estate is in the hands of the executor and the administration has not been completed the right to obtain construction of the will is a continuing right.

(3.) This view appears to have been recognised impliedly in numerous cases of construction of will to be found in the reports. Reference may be made to the case of the will of Hari Das Dutt which was executed on the date of the death of the testator, the 30 October, 1875. The probate was taken out on the 20 December, 1875. The suit for construction was instituted on the 19 December, 1904. There was no suggestion that the suit for construction was barred by limitation. The case was heard in the first instance by Woodroffe, J., then by a Special Bench and ultimately by the Judicial Committee. The judgments will be found reported in Radha Prasad Mullick V/s. Ranee Mani Dassee (1906) 33 Cal. 947, Radha Prasad V/s. Ranee Mani (1908) 35 Cal. 896. Although the suit had been instituted after the lapse of nearly 30 years from the death of the testator, some of the questions of construction had to be reserved and were reserved, following the precedent of the Judicial Committee in Lalit Mohun v. Chukran Lal [1897] 24 Cal. 834. The result was that there was another litigation for construction of the will, for the determination of one of the questions which had been left open : see the cases of Radha Prasad V/s. Rani Mani (1910) 38 Cal. 188 and Rani Mani V/s. Radha Prasad A.I.R. 1914 P.C. 149. It is worthy of notice that oven in this last judgment, another possible question of construction has been left open and may give rise to a further litigation. Reference may also be made to the case of Purna Chandra Bysack V/s. Gopal Lall Sett (1908) 8 C.L.J. 369, which arose out of a suit instituted in 1904 for the construction of a will executed on the 29 May, 1841. It was not suggested before this Court or the Judicial Committee, Gopal Lal V/s. Purna Chandra A.I.R. 1922 P.C. 253, that the suit was barred by limitation. Reference may again be made to the cases of Jehangir Dadabhoy V/s. Kai Khusru Kavasha A.I.R. 1914 P.C. 18 and Kai Khusru Bezonji V/s. Shrinibai A.I.R. 1918 P.C. 206, where the suits for construction of wills would have been obviously barred by limitation, if the view adopted by the Subordiuate Judge in this case and urged by the respondent had been the law.