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In The Matter Of: The Estate Of Late Viswanath Son Of Khodan - TESTAMENTARY CASES No. 40 of 2006 [2006] RD-AH 21191 (15 December 2006)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Court No. 30


 In the matter of the Goods of late Vishwanath (deceased)

Radhay Shyam - Applicant

Hon'ble Sunil Ambwani, J.

Heard Shri R.V. Pandey, learned counsel for applicant.

This is an application for ''Letters of Administration' filed by Shri Radhay Shaym son of Saashi Narain @ Badan resident of Village Majhwar Khas, Tehsil & District Chandauli. It is alleged that late Vishwanath executed a will on 2.12.1987 at Varanasi. He died on 2.1.1988. The original will is annexed to the application and is said to be witnessed by Shri Ballabh, aged 65 years.

There is no averment in the petition that the applicant was not aware of the execution of will and the date of death of the deceased, or that he did not have the will in his possession. The application has been filed after 19 years. It is alleged that in between Smt. Saraswati-the second wife died. The date of death of Smt. Saraswati  has not been given. The applicant has obtained a certificate of death of Vishwanath from village pradhan only on 1.12.2005.

I have gone through the application and original will and do not find that the applicant has given any good and sufficient explanation of the delay of 18 years in filing this application. It is also not alleged that during this period the applicant was administering the property and had even applied for recording his name over it on the basis of the will.

In Re: Begum Shanti Tufail Ahmad Khan, AIR 2006 Alld. 75, this Court has after considering the entire case law on the subject held that except where the will requires execution and application for "Letters of Administration" can be filed within three years of acquiring cause of action. Article 137 of the Limitation Act 1963 unlike the old Limitation Act applies to all the proceedings which include the proceedings of grant of ''Letters of Administration'

The applicant had full knowledge of the execution of the will and the death of deceased. In the State of U.P., section 57 of the Indian Succession Act 1925, does not require letters of administration or probate for administering the properties or executing the will of the deceased. The applicant claims to be in possession and is enjoying the estate of the deceased. He could have applied for letters of administration within three years of the death of the deceased. In Re Begum shanty Tufail Ahmad Khan it was observed:-

"The law of limitation is a law of repose based on rules of estoppel. It serves an important purpose of bringing finality to state of affairs which have prevailed in the knowledge of parties for sufficiently long period of time. The life must go on and that past events should not intervene to bring uncertainty to the common course of events which engulf the citizen. The law of limitation affirm free and uninterrupted flow of events. Where a legal right has not been enforced, for long period of time, it should not be permitted to be put into motion to disturb the normal events. The residuary Article 137 as interrupted in the Kerela State Electricity Board Trivendrum (AIR 1977 SC 282) (supra)  applies to all transactions where the limitation is not specifically provided. It fixes a period of three years for taking action when the right to apply accrues. In case of grant of probate or Letters of Administration of the deceased expressing his/her will, for an action for grant of Letters of Administration or probate as early as possible. The applicability of residuary clause under the Limitation Act serves this purpose. The properties cannot be left un-administered for a long period of time. These may change hands be transfer bringing its  administration to uncertainty and disturb the rights which may accrue in favour of such transferee. The present case offers an example of such facts. In the twenty years in which the will was not brought into light the properties in certain states have changed hands many times. The propounder therefore is under obligation to satisfy the court that he has no knowledge about the execution of the Will.

23. In the present case the averments regarding the knowledge of the will and the fact that it came to the knowledge of the propounder only on 15.7.1997 have not been established. Mohd. Yusuf Khan, the witness and keeper of the Will, has not explained the circumstances in which he did not hand over the will to Sri Jalalludin and did not even choose to inform him about the execution of the will. The will to Sri Jalalludin and did not even choose to inform him about the execution of the will. The inordinate delay has not been adequately explained. The allegations that the will not traced out in time by deponent, who happened to be the witness to the will, cannot be believed, when the propounder in the will had succeeded to large number of properties spread over several states in northern India."

In the present case, the will does not require execution. The deceased desired to give the properties after his death  to the applicant and thus the exception carved out for the applicability of limitation for those wills which require execution, is not applicable to the case.

The testamentary case seeking letters of administration of the deceased is barred by limitation and is accordingly dismissed. The original will and other original papers shall be returned to the applicant on his making an application along with photocopy of the same to be kept in record.

Dt. 15.12.2006


Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites


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