We have now, as per our preceding discussion, settled the question and we hold that Art. 137 of the Limitation Act would not apply to proceedings filed for grant of probate or letters of administration with or without the Will annexed. Before concluding, we must point out that though the proceedings filed for grant of probate or letters of administration may not come within the mischief of Art. 137 of the Limitation Act, 1963, yet the delay aspect is relevant to test the genuineness of the Will propounded. Delay in taking steps gives rise to suspicion and the longer the delay the stronger the suspicion. This is an aspect for consideration of the Court while dealing with the request.
Equivalent Citation: AIR1991Mad214, 1990-1-LW337
IN THE HIGH COURT OF MADRAS
Applns. Nos. 4946, 4986, 5131, 5175, 5180, 5181, 5208 etc. of 1989
Decided On: 03.05.1990
Appellants: In the matter of S. Krishnaswami and etc. etc.
And
Appellants: E. Devarajan and others
Vs.
Respondent: E. Ramiah
Vs.
Respondent: E. Ramiah
Hon'ble Judges/Coram:
S. Nainar Sundaram and K. Swamidurai, JJ.
S. Nainar Sundaram and K. Swamidurai, JJ.
1. In these references the question which we are called upon to answer is to the following effect:
"Whether Art. 137 of the Limitation Act, 1963, will apply to proceedings filed for grant of probate or letters of administration with or without the will annexed?"
The first thing which we should do is to extract, as follows, the Article, with regard to the application of which, to the proceedings, referred to above, we are asked to concentrate :
"137. Description of suit: Any other application for which no period of limitation is provided elsewhere in the Division.
period of Limitation : Three years.
Time from which period begins to run:
When the right to apply accrues."
As we could see from the extract, Art 137 of the Limitation Act, 1963, does not by its terms make specific reference to applications for grant of probate and letters of will ! annexed.
2. It will be worthwhile to advert to the Legislative history concerning the prescriptions for limitation for applications. It cannot be said that the earliest statutes governing limitations did provide for limitations for applications. M. Srinivasan, J. in Sakunthala v. Minor Vijaylakshmi (T.O.S. No. 23 of 1985 and Applns. Nos. 181 of 1988 and 2693 of 1989, Judgment dated 26-9-1989 - concisely reported in 1989 TNJ J 333 had occasion to touch the Legislative history on this aspect and it would be worthwhile to extract, as follows, paragraph 9 of the judgment of the learned Judge, wherein this aspect is the subject matter of recapitulation:
"The earliest of the statutes of Limitation was Act XIV of 1859 passed by the Legislative Council of India and received the Assent of the Governor-General on 5th May, 1859. That came into operation in 1862. Before that, there was one Code of Laws for the Courts established by Royal Charter in the Presidency-towns, and a separate Code for the Company's Courts in each of the three Presidencies of Bengal, Madras and Bombay. The anomaly of having different Codes was done away with by the Act of 1859. According to the preamble, the express object of the Act was to amend and consolidate the laws relating to the limitation of suits. All the Provisions in the Act related only to suits. That Act was replaced by Act IX of 1871, which was to consolidate and amend the law relating to the limitation of suits, appeals and certain applications to Courts and also to provide rules for acquiring ownership by possession. The second schedule to the said Act contained three Divisions, the first of which related to suits, while the second and third related to appeals and applications respectively. That Act was replaced by the Act XV of 1877, the object being to amend the law relating to the limitation of suits, appeals, and certain applications to Courts besides to provide rules for acquiring by possession the ownership and easements and other property. There again, the second schedule contained three Divisions as in the predecessor Act. Art. 178 therein read as follows:
Table 1
Description of Application Period of limitation Time from which period begins to run.
Three years when the right to apply accrues
The Limitation Act, 1908 contained Art. 181 corresponding to Art. 178 of Act XV of 1877. The language of Art. 181 of the Limitation Act, 1908 run as follows:
Table 2
Three years when the right to apply accrues.
3. There are decisions of Courts expressing views that the applications referred to in the residuary Article in the Limitation Statutes must be held to be only applications under the Code of Civil Procedure, applying the principle of ejusdem generis. In the matter of Ishan Chunder Roy, I.L.R.(1881) Cal 707, the Division Bench of the High Court of Calcutta opined that Art. 178 found in Schedule II of the Limitation Act XV of 1877 is not applicable to an application for probate. The reasoning therefore has been expressed by Tottenham, J. who went to constitute the Bench with Morris, J. in the following terms:
"But the preamble to the Act distinctly shows that it is not intended lo apply to all, but to certain, applications lo Courts; and an examination of the 3rd division of Schedule II, which deals with applications, shows that every article therein contained. No. 178 only excepted, specifically relates to some case pending or already decided. Article 178must be construed with reference to the wording of the other articles, and can relate only to applications ejusdem generis, and therefore not to such an application as the one now before us. We find this principle has already been enunciated in this Court on the original side in the case of Govind Chunder Goswami v. Rungunmancy, I.L.R.(1881) Cal 60. It is to be observed, that in the previous Limitation Act, XIV of 1859 ami IX of 1871, no such article as this article (No. 178), was included, and under those Acts no question of limitation could have arisen in respect of an application for probate. It may fairly be presumed that, had the Legislature intended to apply for the first time a period of limitation to such applications, there would have been some provision in regard to them similar to that contained in S. 2 in respect of suits for which the new Act prescribes a shorter period of limitation then was previously allowed.
Altogether we are of opinion that no law of limitation governs applications for probate. Of course long unexplained delay may, in certain cases, throw doubt on the genuineness of the will propounded; but that is a different thing from saying that probate is barred by limitation. The appellant is entitled to have this application decided on its merits."
4. In Bai Manek Bai v. Manekji Kavasji, MANU/MH/0001/1880 : I.L.R.(1883) Bom 213, a Division Bench of the High Court of Bombay held that Art. 178 of Schedule II of Limitation Act XV of 1877 would not apply to applications for probate or letters or certificates of administration and that Article has reference only to applications under the Code of Civil Procedure. The Judgment of Westropp,C. J., is very brief and at the same time portent and requires extraction as follows:
"Inasmuch as we are of opinion that Article 178 of Schedule 11 of Act XV of 1877 is limited to applications made under the Code of Civil Procedure, we hold that applications for Probate, or letters or certificates of administration, do not fall within that article. An examination of all the other articles in the second schedule relating to 'applications', that is to say, of the third division of that schedule, shows that the applications therein contemplated are such as are made under the Civil Procedure Code. Hence it is natural to conclude that the applications referred to in Article 178are applications ejusdem generis, i.e., applications under the Code of Civil Procedure. The preamble of the Act, moreover, purports to deal with 'certain applications' only, and not with all applications. We reverse the order of the Acting District Judge of the 16th July, 1880, and direct the present District Judge to proceed to hear and dispose of the cases on its merits. Costs of this appeal and of the application should abide the result of the hearing on the merits."
5. In Janaki v. Kasavalu, I.L.R.(1885) Mad 207, a Division Bench of this Court consisting of Turner, C.J. and Muttusami Ayyar J., following the rulings in the matter of Ishan Chunder Roy, I.L.R.(1891) Cal 707, and Bai Manek Rai v. Manakji Kavasji, MANU/MH/0001/1880 : I.L.R.(1883) Bom 213, held that Art. 178 of Schedule II of the Limitation Act XV of 1877 does not affect an application under Act XXVII of 1860 for a certificate to collect debts to the estate of a deceased person. The judgment of Turner, C.J. in the pronouncement runs as follows:
"It is argued that no other applications except in suits are dealt with by the Act. If we are to hold that Article 178applies to all applications for which no period of limitation is provided, it would lead to most inconvenient results. Such a limitation could not have been intended to apply to an application for probate, an application under the Religious Endowments Act, an application for the appointment of new trustees, & C. Hence we feel ourselves at liberty to follow the rulings in In re Ishan Chunder Row, I.L.R.(1881) Cal 707 and Raj Manek Bai v. Manekji Kavasji, MANU/MH/0001/1880 : I.L.R.(1883) Bom 213, at least so far as to hold that Article 178 does not apply to applications for certificates to collect debts. The order of the Judge is set aside and the case remanded that he may pass a fresh order. Costs will abide and follow the result."
6. In Ganamuthu Upadasi v. Vana Koil Filial Nadan, I.L.R.(1894) Mad 379, Muttusami Ayyar, J. dealt with the question of applicability of Art. 178 of Schedule II of the Limitation Act XV of 1877 in the following terms:
"It was pointed out in Janaki v. Kasavalu, I.L.R.(1885) Mad 207, so early as November, 1884, that the Limitation Act was not intended to apply to an application for probate, an application under the Religious Endowments Act, an application for a certificate to collect the debts, an application for the appointment of new trustees, and similar applications. It was also explained in the case of Bai Manek Baiv.Manekji Kavasji, MANU/MH/0001/1880 : I.L.R.(1883) Bom 213 and in re Ishan Chunder Roy, I.L.R.(1881) Cal 707, that Article 178 of Schedule II of Act XV of 1877 is limited to applications made under the Code of Civil Procedure, that an examination of all the other articles in the second schedule relating to applications, that is to say of the third division of that schedule, shows that the applications therein contemplated are such as are made under the Code of Civil Procedure, and that though Article178, when read alone, seems capable of the wiriest extension to every application that can possibly be made to a Court, the applications referred to in that article are applications ejusdem generis, i.e., applications under the Code of Civil Procedure, and that any. other construction would lead to the most inconvenient results. 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 trustee, and the right to apply continues so long as object of the trust exists or any part of the trust if really created remains to be executed.
7. In Kalinath v. Nagendra Nath MANU/WB/0023/1959 : AIR1959Cal81 , Division Bench of the High Court of Calcutta considered the questions as to the applicability of Art. 181 of the Limitation Act, 1908 to applications for probate and applying the doctrine ejusdem generis, opined that the application which is contemplated in Art. 131 is confined to the type of applications under the Code of Civil Procedure and the subsequent amendment in 1940 whereby Arts. 158 and 176 were made applicable to certain proceedings under Arbitration Act did not alter the position.
8. The views expressed in the above pronouncements on the basis that the principle of ejusdem generis applied, may not survive in view of the categoric pronouncement of the Supreme Court in the Kerala State Electricity Board v. T. P. Kunhaliumma, MANU/SC/0323/1976 : [1977]1SCR996 , which took note of the change brought about by the Limitation Act, 1963. In that case, the respondent before the Supreme Court filed a petition under Sections 10 and 16(5) of the Indian Telegraph Act, 1885 read with S. 51 of the Indian Electricity Act, 1910 claiming compensation against the Kerala State Electricity Board for trees standing on the property of the respondent, cut and removed for the purpose of laying electric line. As against the compensation assessed by the Board, the respondent claimed enhancement by filing a petition before the District Judge, under S. 16(3) of the Indian Telegraph Act, 1885. The Board amongst other contentions, contended that the petition was barred by time under Art. 137 of the Limitation Act, 1963. The respondent answered that the said provision did not apply to applications to the District Judge under the Indian Telegraph Act. The District Judge held that the application was governed by Art. 137 of the Limitation Act, 1963 and on facts of that case, it was barred by time. The respondent filed revision petitions to the High Court, which set aside the order of the District Judge and remitted the matter back to the Court for' disposal in accordance with law. On Special Leave, from the judgment of the High Court, the Supreme Court dealt with the question in the following Jines, as could be seen from paragraphs 18, 20, 21 and 23 of the pronouncement :
"The alteration of the division as well as the change in the collocation of words in Article 137 of the Limitation Act, 1963 compared with Article 181 of the 1908, Limitation Act shows that applications contemplated under Article 137are not applications confined to !he Code of Civil Procedure. In the 1908, Limitation Act there was no division between applications in specified cases and other application as in the 1963, Limitation Act. The words 'any other application' under Article 137 cannot be said on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part 1 of the third division. Any other application under Article 137would be petition or any application under any Act. But it has to be an application to a Court for the reason that Sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when Court is closed and extension of prescribed period if applicant or the appellant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application during such period.
The provisions in the Telegraph Act which contemplate determination by the District Judge of payment of compensation payable under Section 10 of the Act indicate that the District Judge acts judicially as a Court. Where by statutes matters are referred for determination by a Court of Record with no further provision the necessary implication is that the Court will determine the matters as a Court (See National Telephone Co. Ltd. v. The Postmaster-General, (1913) AC 546. In the present case the statute makes the reference to the District Judge as the presiding Judge of the District Court. In many statutes reference is made to the District Judge under this particular title while the intention is to refer to the Court of the District Judge. The Telegraph Act in Section 16 contains intrinsic evidence that the District Judge is mentioned there as the Court of the District Judge. Section 16(4) of the Telegraph Act requires payment into the Court of the District Judge such amount as the telegraph authority deems sufficient if any dispute arises as to the persons entitled to receive compensation. Again, in Section 34 of the Telegraph Act reference is made to payment of Court-fees and issue of processes both of which suggest that the ordinary machinery of a Court of Civil Jurisdiction is being made available for the settlement of these disputes. Section 3(15) of the General Clauses Act states that the District Judge in any Act of the Central Legislature means the Judge of a principal civil Court of original jurisdiction other than the High Court in the exercise of its original civil jurisdiction, unless there is anything repugnant in the context. In the Telegraph Act there is nothing in the context to suggest that the reference to the District Judge is not intended as a reference to the District Court which seems to be the meaning implied by the definition applicable thereto. The District Judge under the Telegraph Act acts as a Civil Court in dealing with applications under Section 16 of the Telegraph Act.
The changed definition of the words 'applicant' and 'application' contained in Section 2(a) and 2(b) of the 1963 Limitation Act indicates the object of the Limitation Act to include petitions, original or otherwise, under special laws. The interpretation which was given to Article 181 of the 1908 Limitation Act on the principle of ejusdem generis is not applicable with regard to Article 137 of the 1963 Limitation Act. Article 137 stands in isolation from all other Articles in Part I of the third division. This Court in Nityananda Joshi's case MANU/SC/0320/1969 : (1969)IILLJ711SC (supra) has rightly thrown doubt on the two Judge Bench decision of this Court in Athani Municipal Council case MANU/SC/0331/1969 : (1969)IILLJ651SC (supra) where this Court construed Article 137 to be referable to applications under the Civil Procedure Code. Article 137 includes petitions within the word 'applications'. These petitions and applications can be under any special Act as in the present case.
The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil Court. With respect we differ from the view taken by the two Judge Bench of this Court in Athani Municipal Council case MANU/SC/0331/1969 : (1969)IILLJ651SC and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a Court. The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application falling within the scope of Article 137 of the 1963, Limitation Act."
9. There is no wriggling out of the proposition settled by the highest Court in the land. However, the primary question argued by Mr. K. Radhakrishnan, learned senior counsel leading in these matters, is that proceedings filed for grant of probate and letters of administration with or without the will annexed, could not have the character of application, within the meaning of Art. 137 of the Limitation Act, 1963. On this proposition, the pronouncement of the Supreme Court in The Kerala State Electricity Board v. T. P. Kun-haliumma MANU/SC/0323/1976 : [1977]1SCR996 , does not throw any light. The learned Judges of the Supreme Court, in that pronouncement, had no occasion to deal with the present proposition.
10. Now let us advert to the definition of the expressions 'applicant' and 'application' found in Ss. 2(a) and 2(b) of the Limitation Act, 1963;
"2(a) 'applicant' includes -
(i) a petitioner;(b)'application' includes a petition". The definitions are inclusive. They do not expatriate the meanings that should be annexed to the expressions as such. We must find out what 'application' could legitimately and in the legal sense mean. The definition in Section 2(a) and 2(b) may not by themselves be helpful to decide this crucial aspect. In Shorter Oxford English Dictionary some of the meanings annexed to the expression 'application' are: "the action of putting a thing to another"; "the bringing of anything to bear practically upon another"; and "the action of making an appeal, request or petition to a person". In Stroud's Judicial Dictionary Third Edition, one of the meanings annexed to the expression 'application' runs as follows:
(ii) any person from or through whom an applicant derives his right to apply; (iii) any person whose estate is represented by the applicant as executor, administrator or other representative;
"'Application' includes the hearing of the action as well as an interlocutory proceeding (International Financial Society v. Mescow Gas Co., (1877) 7 CHD 241".
The nomenclature of the application is not decisive. The words used in the statute must be construed not according to the more ordinary general meaning of the words. In this connection, we feel obliged to extract the following passage occurring in Maxwell on The Interpretation of Statutes -- Twelfth Edition:
"The words of a Statute, when there is doubt about their meaning, are to be understood in the sense in which they best harmonian with the subject of the enactment. Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject, or in the occasion on which they are used, and the object to be attained. Grammatically, words may cover a case; but whenever a statute of document is to be construed it must be construed not according to the mere ordinary general meaning of the words, but according to the ordinary meaning of the words as applied to the subject-matter with regard to which they are used, unless there is something which renders it necessary to read them in a sense which is not their ordinary sense in the English language as so applied."
11. The first and the foremost impression that occur to the mind of the Court is that an 'application' referred to in the Limitation Act, 1963, must be one intended to settle or secure the rights of the applicant and. correspondingly the obligations of the opposite party. There cannot be dispute that the application must be only before a Court of law. So long as no application is made or presented before a Court of law, the question of limitation would not arise at all. The provisions of the Code of Civil Procedure, hereinafter referred to as the Code, govern the presentation of proceedings before a Court of law. Section 26 of the Code prescribes that every suit shall be instituted by the presentation of a Plaint or in such other manner, as may be prescribed. Section 141 of the Code says that the procedure provided in the Code in regard to suits shall be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction. What is the meaning to be given to the word 'proceedings'? The word 'Proceedings', in its compendium, will certainly take in applications. The scope of 'Proceedings' itself has been considered by pronouncements of this Court. In Ramanathan Chettiar In re, MANU/TN/0289/1941 : AIR 1942 Mad 390, Venkataraman, Rao, J. observed as follows:
"The words 'suit or proceeding' have been interpreted in various senses in different statutes according to the intent and scope of the statute, sometimes in a narrow sense and sometimes in a wide sense. The word 'suit' in a narrow sense is confined to a litigation initiated in a trial Court and ending with a decree or a final order passed by it. In this sense it would not include execution proceedings or proceedings in appeal. But in a wide sense it has been interpreted as comprehending the entire litigation commencing from the initiation of the litigation in the trial Court up to the state when the ultimate decision is reached in the final Court of appeal or as revision. In this view it would include execution proceedings in appeal as continuation of the suit.
The word 'proceeding' has been similarly interpreted. In its narrow sense, it is a step in any action or in an independent proceeding analogous to an action by which a litigation is initiated. In a wide sense it has been interpreted, if used in juxtaposition with a suit, to include any proceeding in the nature of a suit. Even in this view, having regard to the context, it is sometimes limited only to the stage of litigation commenced by filing a petition or application in the trial Court and ending with an order or decree passed by that Court.
In another view it is meant to indicate all the applications in execution of a decree or order passed in the main proceeding and also all proceedings in appeal as continuation of the proceeding. The word 'proceeding' used alone has been interpreted to mean all judicial proceedings and when applied to suits to mean the suit as a whole. Therefore the meaning to be attributed to the word 'suit' or 'proceeding' must depend upon the scope of the enactment wherein the said expressions are used and with reference to the particular context wherein they occur."
12. In Kochadai Naidu v. Nagavasami Naidu MANU/TN/0208/1961 : AIR1961Mad247 , Ramachandra Iyer, J. as he then was, while construing the word 'proceeding', occurring in S. 24 of the Code, had occasion to advert to its definition, found in Shorter Oxford Dictionary and in 'words and phrases' permanent Edition Volume 34, as follows:
"The word 'proceeding' is defined in the Shorter Oxford Dictionary as doing a legal action or process, any act done by the authority of a Court of law". In 'words and phrases' Permanent Edition Volume 34, a number of meanings taken from American decisions are given for the word 'proceedings'. Two of them which I give below bring out of the essential import of the words:
(1)'The word 'proceeding1 ordinarily relates to forms of law, to the modes in which judicial transactions are conducted.'
(2) 'The term 'proceeding' is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right and hence it necessarily embraces the requisite steps by which a judicial action is invoked."
13. Venkatadri, J. in M/s. K. J. Lingan v. Joint Commercial Tax Officer MANU/TN/0196/1968 : AIR1968Mad76 , referred to the earlier pronouncements of this Court with regard to the meaning to be annexed to the term 'proceeding' and held that the very action of calling upon a dealer by the compounding of the Madras General Sales Tax Act 1 of 1959 is a proceeding under that Act, since it is a step in aid or action taken by the concerned authority in the whole process of assessing the dealer on his turnover and hence, a Revision would lie against such notice.
14. Tek Chand, J. of the High Court of Punjab & Haryana in Workmen of M/s. Bali Singh v. M/s. Bali Singh MANU/PH/0059/1969, while construing the word 'proceeding' in S. 93 of the Punjab Reorganisation Act, (1966), observed as follows (at p 149 of AIR):
"Even if inclusive definition was not given of the word 'proceeding' in Section 93, in its general acceptation also, it is a term of wide amplitude; and means a prescribed course of action for enforcing or protecting a legal right and further embracing the requisite steps to be taken whether procedural or substantive. Proceeding also means forms in which relief is sought before Courts of Law or before other bodies or authorities determining rights and liabilities and in which actions are brought and defended and the manner of conducting them and the mode of deciding them".
15. As a principle, it has to be stated that the word 'proceedings', which takes in applications within its ambit is relatable to an action in a Court of law. With regard to the meaning to be annexed to the word 'action', in Bharat Bank Ltd. v. Ruby General Insurance Co. Ltd., AIR 1951 Pun 97, the following passage from Haisbury's Laws of England stands extracted:
"An 'action' according to the legal meaning of the term, is a proceeding by which one party seeks in a Court of Justice to enforce some right against, or to restrain the commission of some wrong by, another party. More concisely it may be said to be 'the legal demand of a right', or 'the mode of pursuing a right to judgment'. It implies the existence of Parties, of an alleged right, of an alleged infringement thereof (either actual or threatened), and of a Court having power to enforce such a right."
In Stroud's Judicial Dictionary -- Third Edition, one of the definitions given to the word 'action' runs as follows:
"This is a generic term, and means a litigation in a civil Court for the recovery of individual right or redress of individual wrong, inclusive, in Us proper legal sense, of suits by the Crown (Bradlauch v. Clarke, (1883) 8 App Cas 354; see also Judgment of Brett, M. R. in A. G. v. Bradlauch, (1885) 14 QBD 667).
In substance, an 'action is a legal proceeding, whereby the applicant seeks enforcement or rights or claims and/or discharge of obligations cast on the opposite side towards the applicant. To put it in a nutshell as a proposition of law, an application must be an action before a Court of law.
16. Article 137 is found in Part II of the Third Division of the Limitation Act, 1963. The Articles 118 to 136 set out in Part I of the Third Division are all meant and intended for serving the cause of the applicant in settling and securing rights claimed by him and sought to be enforced by him against the opposite party. Hence, it is legitimate to annex to the word 'application', occurring in Article 137 in Part II of the Third Division, the same implications as are annexed to 'applications' in Part 1 of the same Division; for after all Article 137 speaks about 'any other application for which no period of limitation is provided elsewhere in this Division."
17. In a proceeding, or in other words, in an application filed for grant of probate or letters of administration, no right is asserted or claimed by the applicant. The applicant only seeks recognition of the Court to perform a duty. Probate or letter of Administration issued by a competent Court is conclusive proof of the legal character throughout the world. An assessment of the relevant provisions of the Indian Succession Act, 1925 does not convey a meaning that by the Proceedings filed for grant of probate or letters of administration, no rights of the applicant are settled or secured in the legal sense. The author of the testament has cast the duty with regard to the administration of his estate, and the applicant for probate or letters of administration only seeks the permission of the Court to perform that duty. There is only a seeking of recognition from the Court to perform the duty. That duty is only moral and it is not legal. There is no law which compels the applicant to file the proceedings for probate or letters of administration. With a view to discharge the moral duty, the applicant seeks recognition from the Court to perform the duty. It will be legitimate to conclude that the proceedings filed for grant of probate or letters of administration is not an action in law. Hence, it is very difficult to and it will not be in order to construe the proceedings for grant of probate or letters of administration as applications coming within the meaning of an 'application' under Art. 137 of the Limitation Act, 1963.
18. There is another angle to view the matter from, and that is since the right to apply is a recurring one, considering the nature of the proceedings, it will be inappropriate to fall back upon Art. 137 of the Limitation Act, 1963. It will be sufficient if we make a reference, as follows to the pronouncements, which have expressed such a view:
(1) Ramanand thakur. Parmanand Thakur MANU/BH/0022/1982 : AIR1982Pat87 ; and (2) Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani MANU/MH/0222/1983 : AIR1983Bom268 .
But, there is no need to express any view of ours over this aspect, since we have categorically formed the opinion that the proceedings for grant of probate or letters of administration could not fulfil the character of an 'application' and the person, who initiates such proceedings cannot have the character of an 'applicant'.
19. We must record here that the present references have come to be made by Janar thanam, J. The learned Judge was impelled to make the references in view of the two pronouncements of two learned Judges of this Court, each taking a different in In the matter of the Last Will and Testament of V. S. Ranganathachariar* (O. P. No. 133 of 1989, Order dated 24-8-1989ireported in MR 1990 NOC 139 (Madras)) held that in such proceedings, the limitation question would not arise. However, M. Srinivasan, J. in Sakunthala v. Minor Vijayalakshmi (T. O. S. No. 23 of 1985 and Appln. No. 181 of 1988 and 2693 of 1989, Judgment dated 26-9-1989 - concisely reported in 1989 TNLJ 333) held the other way about. M. Srinivasan, J. was of the view that the pronouncement of the Supreme Court in The Kerala State Electricity Board v. T. P. Kunhaliumma MANU/SC/0323/1976 : [1977]1SCR996 , has settled the law in unmistakable terms and the learned Judge also did not fall inline with the thinking that since the right to apply is a recurring one the question of limitation would not arise.
20. We have now, as per our preceding discussion, settled the question and we hold that Art. 137 of the Limitation Act would not apply to proceedings filed for grant of probate or letters of administration with or without the Will annexed. Before concluding, we must point out that though the proceedings filed for grant of probate or letters of administration may riot come within the mischief of Art. 137 of the Limitation Act, 1963, yet the delay aspect is relevant to test the genuineness of the Will propounded. Delay in taking steps gives rise to suspicion and the longer the delay the stronger the suspicion. This is an aspect for consideration of the Court while dealing with the request. We can only leave this aspect at that. Now we have answered the references, the matters will have to go before the learned single Judge, who could deal with them on merits.
21. Order accordingly.
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