TMI Blog2016 (1) TMI 1502X X X X Extracts X X X X X X X X Extracts X X X X ..... r partition was issued in 2003, no steps were taken. Nor after the suit was filed in 2007, steps could have been taken to apply for issuance of letters of administration. Therefore, it is clear that the petitioners deliberately waited for the suit to be over and only when the judgment was reserved in the suit in the year 2011, they have preferred the petition for grant of letters of administration. It cannot be stated that Letters Patent and Rules made thereunder by the High Court for regulating the procedure on the original side, are subordinate legislation and, therefore, only Limitation Act which is a superior legislation will prevail - the finding of the learned single Judge holding that Article 137 of the Limitation Act is not applicable to probate proceedings and dismissal of the Original Applications, in our considered opinion, require no interference. Appeal dismissed. - Sanjay Kishan Kaul, C.J. And Pushpa Sathyanarayana, J For the Appellant : S.R. Raghunathan For the Respondent : M.S. Krishnan, SC for M. Balasubramanian JUDGMENT 1. S.M. Subramanian Chettiar, testator of the Will dated 11.12.1996 died on 15.12.1996 leaving behind him two sons an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are in the father's properties, the appellants issued legal notice on 18.4.2003 demanding partition of the properties. There was no response from the respondents 1 and 2 herein and also no immediate action from the appellants. A suit in C.S. No. 524 of 2007 was filed by the appellant in O.S.A. No. 10 of 2013 on 21.3.2007. The same was contested by the defendants/respondents herein contending that the deceased father had allegedly left behind a Will dated 11.12.1996. The trial was completed an the suit was reserved for judgment on 16.11.2001. It is then the respondents 1 and 2 filed a petition for Letters of Administration in O.P. No. 731 of 2011. The main contention of the applicants is that the Will dated 11.12.1996 is not genuine one and it has been forged by the petitioners 1 and 2, viz., the sons of the deceased testator. Therefore, the said Original Petition is sought to be rejected on the ground of limitation by filing O.A. Nos. 3515 and 3516 of 2012. The said applications were dismissed by the learned single Judge by common judgment dated 31.10.2012 which is impugned in the instant appeals. 7. As the issuance of Letters of Administration was opposed, it became content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tters of Administration; (iii) Whether the Rules of the Madras High Court Original Side will have a overriding effect over the provision of Limitation Act?; and (iv) Continuous cause of action Discussion:-- 13. Before going into the merits of the case, it would be necessary for this Court to have a detailed discussion on the above points in the light of the various judgments of this Court and the Hon'ble Apex Court. Whether law has prescribed any period of limitation to apply for grant of probate or Letters of Administration? Are they governed by the Law of Limitation or exempted from the operation of the Limitation Act. Since they are in the nature of obligations seeking recognition as a testamentary trustee or for permission to perform the duties created in the testament, the cause of action arises and continues to exist so long as the testament remains unprobated. The right to apply continues so long as the object of the trust exists. Delay by itself cannot be a ground for refusing the grant of probate otherwise when there is proof of execution of the Will by acceptable and convincing and documentary evidence. In the absence of any specific period of limitation, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decide any question, of title or of the existence of the property itself. 17. One cannot deny that the grant of probate is under testamentary jurisdiction and the same cannot be taken away or delegated to any other Court. The scope of the probate Court also, as already explained, does not affect the rights and liabilities of the parties so as to make the Limitation Act apply. 18. The question why no period of limitation is prescribed for probate proceedings finds an answer in Ganamuthi Upadasi v. Vana Koil Filial Nadan I.L.R. (1894) Mad 379], wherein Muthusami Ayyar, J. has observed as under:-- It is no doubt usual to demand an explanation when there is unreasonable delay in applying for probate, because the time when after the testator's death the will is to be proved is not fixed, and the explanation is necessary to assist the Judge in coming to a finding as to the genuineness of the will propounded. The reason for the exemption of applications for probate from the operation of the Limitation Act probably is that the application for probate is in the nature of an application for permission to perform a duty created by a will or for recognition as a testamentary tru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted judgment dated 04.12.2009, is the next case relied on by the learned counsel for the appellants wherein a single Judge of the Delhi High Court had held as under:-- ...The petitioner had, in the meanwhile, taken no steps to approach the court having exclusive jurisdiction for probate or letters of administration. Even if the petitioner's knowledge of a dispute in relation to the Will now propounded by him, were to be assumed only in 1999, on a proper application of the law declared by the Supreme Court in Kunvarjeet Singh Khandpur, the right to apply accrued then. The three year period prescribed in Article 137 (of the schedule to the Limitation Act) therefore, commenced in 1999, and ended sometime in 2002. Even if the petitioner were to be given benefit of doubt, for some reason, as the suits (one of which was filed by him) were pending till 30-4-2004, he ought to have approached this court, seeking the reliefs he now claims, within three years from that date. He has, however, filed the present petition on 3rd March, 2009, clearly beyond the period of limitation. (iii) In Karan Singh and others v. State and others, once again the Delhi High Court observed as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Court in Kunvarjeet Singh Khandpur's case, that in an application for grant of probate/Letters of Administration, no right is asserted or claimed by the applicant but still it has been held that Article 137 applies. The right to apply for probate/Letters of Administration accrues everyday till the Will remains unprobated as it is a continuing cause of action. Being a continuous right, as long as the right is not extinguished, it can be exercised at any time after the date of death of deceased. No doubt, the longer the delay, stronger would be the suspicion. 25. While deciding Kunvarjeet Singh Khandpur's case (cited supra), the Hon'ble Apex Court, besides making a reference to a decision of the Bombay High Court's case in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani AIR 1983 Bom. 268], also approved the principles laid down in paragraph 16 therein. For easy understanding, the same is reproduced hereunder:-- 16. Rejecting Dalapatrai's contention, I summarise my conclusions thus: (a) Under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Bench, R.V. Raveendran, J., in paragraph 19 of the judgment, observed in the following lines:-- An application seeking leave to proceed, in respect of a pending suit or proceeding (filed before the order of winding up) is not an application for enforcement of any claim or right. It does not seek any 'relief' or 'remedy' with reference to any claim or right or obligation or liability. It is an application which is interlocutory in nature. An interlocutory application is not subject to any period of limitation, unless otherwise specifically provided by law. We are conscious of the fact that an application under Section 446(1) seeking leave to proceed with the suit/proceeding, is not filed as an 'interlocutory application' in the suit/proceeding before the court where such suit/proceeding is pending. But an interlocutory application is nothing but an application in the course of an action. It is a request made to a court, for its interference, in a matter arising in the progress of a proceeding. Therefore, in a broad sense, the application under section 446(1) filed before the company court seeking leave to proceed with a pending suit or proceeding, is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Before going into an analysis on this point, it is worthwhile to extract Order XXV Rule 9 of the Original Side Rules which extensively deals about the Testamentary and Intestate matters:-- In any case where probate or letters of administration is for first time applied for after the lapse of three years from the death of the deceased, the reason for the delay shall be explained in the Petition. 33. It is thus quite apparent that all that is required in the eventuality of the Letters of Administration being applied for after a lapse of three years from the date of death of the deceased, is that there should be an explanation forthcoming for the delay in presentation of the application and not that it would be a bar to institution of such proceedings. In our view, such a requirement is so stipulated on account of there being a continuous right, and long delays would throw suspicion on the Will. However, if this delay is explained and the Will proved in accordance with law, there would be no impediment to the grant of Letters of Administration in respect of the Will. 34. We may examine this matter even from another view point that if Article 137 of the Limitation Act wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the legal notice for partition was issued in 2003, no steps were taken. Nor after the suit was filed in 2007, steps could have been taken to apply for issuance of letters of administration. Therefore, it is clear that the petitioners deliberately waited for the suit to be over and only when the judgment was reserved in the suit in the year 2011, they have preferred the petition for grant of letters of administration. Letters Patent and General Law:-- 39. Coming to the aspect of the Letters Patent prevailing over general law, law is well settled that Letters Patent is a special law enacted for special cases in special circumstances whereas Limitation Act is a general law laying down the general rules of limitation laid down in other statutes. It has also become necessary to point out that the Letters Patent is a special charter conferring jurisdiction on Chartered High Courts based on which the Original Side Rules are formulated and as such, when there is a special enactment such as the Letters Patent, which expressly lays down the criteria on the jurisdiction of the Chartered High Court, it is totally unnecessary and in fact, futile to refer to another legislation, which may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judges Bench of the Hon'ble Supreme Court in Kaushalya Rani v. Gopal Singh AIR 1964 SC 260] observed in paragraph 7 of the judgment as under:-- ...As the Limitation Act has not defined 'special law', it is neither necessary nor expedient to attempt a definition. Thus, the Limitation Act is a general law laying down the general rules of limitation applicable to all cases dealt with by the Act; but there may be instances of a special law of limitation laid down in other statutes, though not dealing generally with the law of limitation.... 42. At this juncture, it would be relevant to refer to the decision of the Larger Bench, comprising of five Judges, of the Hon'ble Apex Court in P.S. Sathappan (Dead) by L.Rs. v. Andhra Bank Limited and others (2005) 1 MLJ 105 (SC), wherein, in paragraph 32 of the judgment, it has been observed in the following words:-- A Letters Patent is a special law for the concerned High Court. Civil Procedure Code is a general law applicable to all Courts. It is well settled law, that in the event of a conflict between a special law and a general law, the special law must always prevail. We see no conflict between Letters Patent an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another v. Sugna Devi (2004) 9 SCC 68], the Hon'ble Apex Court held that in a case of continuing cause of action, question of limitation would not arise and in this context, in paragraph 6, it has been held as follows:-- ...Once no order of termination or dismissal is produced, her service has to be treated as stood transferred to the Basic Education Board by operation of law. In that event she has to be treated as continuing in service and salary was accruing every month that accorded her a continuing cause of action. Therefore the question of limitation also won't arise in this case. 46. Now, applying the aforesaid principles to the facts of the present case, we find that there is an assertion of the claim of execution of the Will by the testator. Indisputably, subsequent to the filing of the suit in the year 2007 by the one of the appellants, the matter was referred to Lok Adalat and since the settlement did not fructify, the respondents herein proceeded to apply for probate of the Last Will and Testament of S.M. Subramaniam Chettiar. Admittedly, the Will was read out to the family members on the eleventh day of the ceremony of the deceased testator, i.e., on 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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