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INDRA DEV IN THE MATTER OF GOODS OF LATE BHAKT RATAN

High Court of Judicature at Allahabad

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Indra Dev In The Matter Of Goods Of Late Bhakt Ratan - TESTAMENTARY CASES No. 29 of 2003 [2006] RD-AH 5724 (9 March 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 9.

Testamentary Case No. 29 of 2003.

Indra Dev                                       ...                       Petitioner

In the matter of

The Goods of

Late Bhakt Ratan

                                                       ...                           Deceased.

Hon. Sunil Ambwani, J.

Heard Sri Gyan Prakash and Sri I.C. Pandey in support of the application for letters of administration with will attached, alleged to have been executed by Sri Bhakt Ratan Agarwal on 15.6.1982 in respect of the 85 ft. North-East and 65 ft North-West land  of house no. 11-C Moti Lal Nehru Road, Allahabad.  It is alleged  in the application that Sri Bhakt Ratan was residing at House No. 11-C Moti Lal Nehru Road, Allahabad.  He died on 27.10.1983 leaving behind a will dated 15.6.1982 by which the scheduled land was bequeathed to the applicant Indra Dev who was not related to him and was alleged to be serving Sri Bhakt Ratan  who had left behind four daughters, living at Allahabad, Mumbai, New Delhi and U.S.A.  In paragraphs 7 and 8 of the application it is stated that Sri Lajpat Rai and Sunil Kumar who were not  related to the deceased, were claiming title and interest in his estate on the basis of some forged documents and that any settlement or compromise by Sri Rajpat Rai and Sunil Kumar is illegal and void.  

Notices were issued on 7.11.2003 and citations were published in newspaper in pursuance of which Smt. Sant Kumari Agarwal, and Smt. Nirat Kumari Gupta daughters of Late Bhakt Ratan filed objections on 5.1.2004 and Sri Lajpat

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Rai and Sunil Kumar also filed their objection on 23.3.2004.  Both the objectors have denied execution of will dated 15.6.1982, and the possession of the applicant at any time, over the scheduled property either on 15.6.1982, or thereafter.

Although there is some inconsistency between the claim set up by the daughters and Sri Lajpat Rai and Sunil Kumar, it is admitted that the Original Suit  No. 198 of 1976 was filed by Sri Lajpat Rai against Bhakt Ratan claiming title on the basis of adverse possession, which was decreed on 12.3.1977.  In the proceedings on the appliction for recalling the order, the daughters, who had, after the death of theirn father Late Shri Bhakt Ratan, sold the land to Pratibha Sahkari Avas Samiti Ltd., a compromise took place between the parties, including the daughters, in pursuance of which the property was divided into small plots and sold by the society.

In these proceedings under Section 278 of the Indian Succession Act, 1925,  for grant of Letters of Administration, the Court is not concerned with the title of property but the due execution of the will. The applicant, however, has to satisfy the Court whether he exercises due diligence in bringing the will into motion.

In the present case it is admitted that the applicant had full knowledge of the will dated 15.6.1982 which, according to him, became operative on the death of the deceased  on 27.10.1983.  M/S.  Pratibha Sahkari Avas Samiti Ltd. ( In short the Society) has also entered appearance through Sri Vishnu Gupta, Advocatge  and had filed their objection to the grant of Letters of Administration.  According to the Society, it purchased House Nos. 11,12,15 and 16, previously numbered as

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11-C, Moti Lal Nehru Road, from its owner namely daughters of Late Sri Bhakt Ratan vide registered sale deed dated 11.2.1987, and that it sold the property in small plots except the portion which was illegally occupied by Sri Indra Deo.  The Society has taken a stand that Sri Mangroo, the father of Indra Deo was not serving the deceased.  He has made an attempt to illegally grab the scheduled land.  Sri  Lajpat Rai and Sunil Kumar are claiming Sri Indra Dev to be their tenant,  and the daughters of the deceased  are not admitting the will or the possession of the applicant Indra Deo.

In the supplementary affidavit filed today,  the applicant Sri Indra Deo has set up a very interesting story about the delay in bringing the will into motion. He has stated that after the death of Bhakt Ratan, the deceased, Shri Lajpat Rai  claiming himself to be a lawyer, an a neighbour of the deponent, advised him that he should not reveal  the will to anybody otherwise he will lose the property.  He took a photostat copy of the will for moving a mutation application in Nagar Nigam   and also took expenses from the applicant but  did not pursue mutation case.   The applicant later on found that said Sri Lajpat Rai is claiming himself to be landlord and filed a eviction case against the applicant.   This P.A. Case No. 2 of 2003 is still pending.  Sri Lajpat Rai also filed a case for arrears of rent as Misc. Case  No. 42 of 2003.   The applicant moved an application for mutation in Nagar Nigam on 19.10.2002 and his name was mutated.  On an objection made by Lajpat Rai an order has been passed by the Municipal Commissioner on 12.11.2003 to decide the mutation application on its  merits and the matter is pending there.   The applicant has also filed a title suit in the Court of Civil Judge(Senior Division) Allahabad as Case No.

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179 of 2006.

In Testamentary Case  No. 28 of 1997: Begum Shanti Tufail Ahmad Khan, aftter considering the entire case law, I held as follows:

"18. The Indian Succession Act 1925 does not provide for any limitation to file a petition for  probate. Sri J. Nagar, Administrator General states that in the circumstances Article 137 of the Limitation Act 1963 would be applicable,  which is residuary clause and provides that for any other application for which no period of limitation is provided elsewhere, the period of limitation will be three years,  when the right to apply accrues. It is submitted by  Sri S.K. Misra that in the case of will where no probate was granted,  the cause of action to obtain probate accrues on every date until the will is probated. He submits that the residuary clause under Article 137 of the Limitation Act 1963 has no application to proceedings of probate.

19. An application may be given for probate of the Will by executer or any other beneficiaries where the Will provides for its execution. In cases of Will where no executer is  named in the Will,  nor the Will requires its execution by any other person an application is maintainable for Letters of Administration. In Kerela State Electricity Board Trivendrum vs. T.P. Kunhaliumma AIR 1977 SC 282 the Supreme Court held that where by statutes matters are covered for determination by a court,  with no further provision,  the necessary implication is that the court will determine the matter. The application of  Article 137  is not  confined to the Code of Civil Procedure. The words ''any other application' under Article 137 cannot be said on the principle of edjusdem generis to be obligations under the Code of Civil Procedure other than those mentioned in Part-I of the Third Division. Any other application under Article 137 would be petition or any application under any Act,  but it has to be an application to a Court for a reason that Section 4 and 5 of the

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Limitation Act speak of expiry of prescribed period when the Court is closed. An explanation of prescribed period if an applicant or appellant satisfy the Court that he had sufficient cause for not preferring the appeal or making application during such period. In Smt. Shakuntala Devi vs. Ladley Mohan Mathur, 1986 AWC 120 this Court held that no limitation is provided for seeking the probate of a duly executed will. The Court took into account the delay as suspicious circumstances of not producing the Will. The plea of limitation and applicability of Article 137 of the Limitation Act was neither raised nor decided. In Smt. Leela Karwal vs. J Karwal and others AIR 1983 Allahabad 386, this Court observed in para 58 that there was no limitation prescribed for filing an application for grant of Letters of Administration. The delay in filing the petition is a matter to be considered while adjudicating upon the validity of the will in respect of which the grant of Letters of Administration has been sought. But the mere fact that a petition is filed after 13 years, cannot be a ground for holding it to be non-maintainable in law.

20. In Ramanand Thakur vs. Parmanand Thakur AIR 1982 Patna 87 it was observed that though Article 137 of the Limitation Act applies to any petition or application filed under any Act.,so far as applications for grant of a probate or Letters of Administration are concerned, they are not governed by any Article of Limitation Act. The reasons given in the judgement are that in case  an application for grant of probate or Letters of Administration it is difficult to find out as to when the right to apply accrues and unless that date can be fixed, there is no question of starting of the period of limitation. The right to apply for a probate accrues from day-to-day so long as the will remains unprobated. The Patna High Court relied upon the judgement of Calcutta High Court in Kalinath vs. Nagendra Nath AIR 1959 Calcutta 81 it was under the old limitation act in which the residuary Article 181 was couched in a different language in Article 181 of the Indian Limitation Act 1901. The applications for which no limitation

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is provided elsewhere in the schedule or by Section 48 of the Code of Civil Procedure the period of limitation was three  years, when the right to appeal accrues.

21. In the matter of Estate of Late Gurcharan Dass Puri AIR 1987 Punjab and Haryana 122 the Punjab High Court relied upon the period of limitation prescribed under Article 137 of the Limitation Act 1963 and distinguishing Ramanand's case (AIR 1982 Patna 87) held that Article 137 of the Limitation Act 1963, will govern the petition for obtaining Letters of Administration. In John Feransic Anthony Gonsalves vs. Agnesmary Conception Rebell, AIR 2001 Bombay 372, the Bombay High Court did not frame any issue with regard to the applicability of the Limitation Act. It, however, held that the delay of 20 years will dis-entitle the legatee from executing the same and that relying upon Section 141 of the Indian Succession Act 1923 which provides that if a Legatee has bequeathed to a person whose name is given as an executer of the will he shall not take the lessee unless he proves the will or signifies, manifests an intention to act an executor and  held that the delay of 20 years established that the executor had manifested  his  intention not to act as an executor.

22. 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 affirms 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 (supra) applies to all transactions where the limitation is not specifically provided. It fixes a period of three

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years for taking action when the right to apply accrues. In cases of grant of probate or Letters of Administration of the deceased expressing his/her will, for arrangements of his/her affairs after his/her death the propounder must bring 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 longer period of time. These may change hands by 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 pro-pounder therefore is under obligation to satisfy the court that he has no knowledge about the execution of the will."

 The present case  has been filed after 25 years of the execution of the will.   The applicant has no where stated that he was not aware of the execution of will or that he came to know about it within three years of bringing this action for letters of administration.  He was, on his own admission hiding the will, under a mistaken legal advice given by a person, who claims to be his landlord.  The will does not require any execution, and does not call for grant of probate.  The facts and circumstances create a doubt on his assertion of possession over the scheduled land.

This application for Letters of Administration is as such held to be barred by limitation.   I n between there has been considerable litigation  which has no bearing on these proceedings.

The Testamentary Case is accordingly dismissed.

Dt. 9.3.2006./BM TC 29-03


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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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