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Ramanand Thakur v. Parmanand Thakur Opposite Party.
Factual and Procedural Background
This matter arises from a probate proceeding seeking grant of probate of a will executed by Munna Lal Thakur, who died on 12-10-1968. The objector (the petitioner before the Court) challenged the probate application on the ground that it was barred by limitation under Article 137 of the Limitation Act 1963, because the probate application was filed on 11-7-1979, which the objector says is beyond the prescribed period of three years under that Article.
The learned District Judge, following a decision of the Calcutta High Court, rejected the limitation plea. The objector appealed to this Court. A learned Single Judge, on hearing, referred the matter to a Division Bench for determination.
Legal Issues Presented
- Whether Article 137 of the Limitation Act, 1963 applies to applications for probate or letters of administration filed under statutes or special laws beyond the Code of Civil Procedure.
- If Article 137 applies, whether an application for grant of probate or letters of administration is barred by limitation — specifically, when the right to apply accrues (the starting point for computation of limitation) for such applications.
Arguments of the Parties
Petitioner's (Objector's) Arguments
- The probate application filed on 11-7-1979 is time-barred under Article 137 of the Limitation Act, 1963, because it was filed beyond the statutory period of three years applicable under that Article.
The opinion does not contain a detailed account of the other party's legal arguments in this text.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Kerala S.E Board v. T.P Kunhaliumma, (AIR 1977 SC 282) | The Supreme Court noticed differences in the placement and language of Art.137 (new) and Art.181 (old) and overruled the earlier view that Art.137 applied only to applications made under the Code of Civil Procedure. | The Court relied on this decision to conclude that Art.137 applies to petitions or applications filed under any Act and is not confined to applications under the Code of Civil Procedure. |
| Kalinath v. Nagendra Nath, (AIR 1959 Cal 81) | Considered the starting point for computing the period of limitation for probate applications under the old Article (Art.181) and dealt with competing contentions about when the right to apply accrues. | The Court found the Calcutta High Court's discussion supportive of the view that the right to apply for probate accrues from day to day while the will remains unprobated, leading to the conclusion that such applications are not governed by any article of the Limitation Act. |
| Gnanamuthu Upadesi v. Vana Koilpillai Nadan, ((1894) ILR 17 Mad 379) | Authority from the Madras High Court referenced as consistent with the view that the right to apply for probate accrues continuously (supporting no fixed starting point for limitation). | The Court cited this case as supporting the Calcutta High Court's approach and used it to bolster the conclusion that probate applications do not fall under a specific limitation period. |
Court's Reasoning and Analysis
The Court proceeded in two linked steps.
- Construction of Article 137: The Court observed that Article 137 of the new Limitation Act is a residuary provision analogous to Art.181 of the old Act but with important changes in placement and language. Whereas Art.181 was placed among applications under the Code of Civil Procedure (leading to an ejusdem generis application), Art.137 is placed separately in a part governing "other applications" and the Limitation Act's updated definitions (S.2(a) and 2(b) of the 1973 Act, as referenced) broaden the concept of "application" to include petitions under special laws. The Supreme Court's decision in Kerala S.E Board v. T.P. Kunhaliumma was cited as having overruled the earlier restrictive construction and confirming that Art.137 applies to applications beyond the Code of Civil Procedure.
- Application to probate/letters of administration: Despite concluding that Art.137 applies broadly, the Court turned to whether probate applications are governed by any Article of limitation. The Court explained the practical difficulty in fixing a single accrual date for the right to apply for probate: the right to apply accrues "from day to day" while the will remains unprobated, meaning the cause of action for applying arises continuously. The Court relied on the Calcutta High Court's discussion in Kalinath v. Nagendra Nath and the Madras decision in Gnanamuthu Upadesi v. Vana Koilpillai Nadan to support the proposition that for applications for probate or letters of administration there is effectively no period of limitation because no definite starting date can be fixed for accrual of the right to apply.
On this basis the Court concluded that although Article 137 applies generally to petitions under any Act, applications for grant of probate or letters of administration are not governed by any Article of the Limitation Act because the right to apply accrues continuously and cannot be reduced to a single starting point for limitation.
Holding and Implications
Holding: The application challenging the probate on limitation grounds was dismissed. The Court's core ruling is emphasized below.
APPLICATION DISMISSED.
Implications:
- The Court held that Article 137 of the Limitation Act applies generally to petitions or applications filed under any Act (not confined to the Code of Civil Procedure), following the Supreme Court authority cited.
- However, the Court concluded that applications for the grant of probate or letters of administration are not governed by any Article of the Limitation Act because the right to apply accrues continuously while the will remains unprobated; consequently, no fixed limitation period can be sensibly applied to such applications.
- As a result, the objector's limitation plea failed; the application for probate was dismissed and the Court ordered that the parties bear their own costs. The revision was dismissed.
1. This application arises out of a probate proceeding for the grant of probate of a will. The objector who is the petitioner before us took an objection that the application filed for probate of the will executed by one Munna Lal Thakur, who died on 12-10-1968, was barred by Limitation under Art. 137 of the Limitation Act 1963 inasmuch as having been filed on 11-7-1979 beyond the prescribed period of three years under said Article.
2. The learned District Judge following a decision of the Calcutta High Court has rejected this plea. Accordingly the objector has come to this Court and a learned single Judge before whom the case was placed for hearing has referred it to a Division Bench.
3. Article 137 of the new Limitation Act is the residuary Article like Art. 181 of the old Limitation Act but with certain modification in the language and its classification which in our view is of great importance. Article 181 was placed in the Third Division dealing with the application, but Art. 137 has been placed separately although under the Third Division in a separate part to govern “other applications” apparently thereby indicating the intention of the legislature that the expression application was not confined to the types of cases where the other articles under the Third Division were placed. Apart from the change of the division, the words used in Art. 137 are also slightly different. The words “any other application” under Art. 137 cannot be said on the principle of ejusdem generis applies only to applications under the Code of Civil Procedure other than those mentioned in Part I of the Third Division. In the old Limitation Act the word “application” was not defined and all that was defined was the expression “applicant”. The changed definition of the words “applicant” and introduction of the definition of the word “application” in S. 2(a) and 2(b) of the 1973 Act indicates the object of the Limitation Act to include petitions under special laws other than the Code of Civil Procedure. It was on this account that the operation of Art. 181 was limited to applications made under the Civil Procedure Code particularly in view of the fact that all the other applications in the division in which Article 181 was placed referred to the applications under the Code of Civil Procedure and, therefore, almost all the High Courts including the Supreme Court had taken the view that the “applications” referred to in Article 181, by the application of the doctrine of ejusdem generis applied only to the applications under the Code of Civil Procedure.
4. The Supreme Court in the case of Kerala S.E Board v. T.P Kunhaliumma, (AIR 1977 SC 282) has noticed the differences pointed out above and has overruled its earlier view that Art. 137 applied only to application made under the Code of Civil Procedure.
5. But notwithstanding the taking of this view of the legal position regarding the construction of Art. 137, the petitioner in our considered opinion still must fail inasmuch as in the case of the application for grant of Probate or Letters of Administration, it is difficult to find out as to when the right to apply accrues because unless that date can be fixed, there is no question of starting of the period of limitation. Although we could not find any decision on this question of our own High Court, we find this question having been discussed by a Bench of the Calcutta High Court in the case of Kalinath v. Nagendra Nath, (AIR 1959 Cal 81) though it was a case under the old Limitation Act where the learned Judges were confronted with Art. 181 of the Limitation Act. The argument advanced in that case was that the starting point for computing the period of limitation would be the date when the executor for the first time became aware of the will. This argument was rejected as Mr. Madhusudan Singh had contended that the starting date for the said purpose would be the date of the death of the testator. We are unable to accept this contention as the right to apply for a probate accrues from day to day so long as the will remains unprobated. In other words, the right to apply accrues every day and the cause of action for an application for probate arises every moment so long as the will remains unprobated and, therefore, for such an application there is no period of limitation and for taking this view we find full support from the Calcutta case which also finds support from the view taken by the Madras High Court in the case of Gnanamuthu Upadesi v. Vana Koilpillai Nadan, ((1894) ILR 17 Mad 379). Therefore, while holding that the Art. 137 of the new Limitation Act applies to any petition or application filed under any Act, we do not feel any difficulty to come to the conclusion that so far as the application for grant of a Probate or Letters of Administration is concerned, they are not governed by any Article of the Limitation Act. The application accordingly fails and, is hereby dismissed, but in the circumstances, we shall leave the parties to bear their own costs.
Revision dismissed.
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