Sunday, 6 October 2019

How to ascertain limitation for filing application for revocation of probate?

The decision in Lynette Fernandes v. Gertie Mathias, (2018)
1 SCC 271, dealt with the precise issue of the period of limitation
applicable for an application for cancellation of a probate or
letters of administration. This court held as follows:
“One must keep in mind that the grant of probate by
a Competent Court operates as a judgment in rem
and once the probate to the Will is granted, then
such probate is good not only in respect of the
parties to the proceedings, but against the world. If
the probate is granted, the same operates from the
date of the grant of the probate for the purpose of
limitation Under Article 137 of the Limitation Act in
proceedings for revocation of probate. In this matter,
as mentioned supra, the Appellant was a minor at
the time of grant of probate. She attained majority on
09.09.1965. She got married on 27.10.1965. In our

considered opinion, three years limitation as
prescribed Under Article 137 runs from the date of
the Appellant attaining the age of majority i.e. three
years from 09.09.1965. The Appellant did not choose
to initiate any proceedings till the year 25.01.1996
i.e., a good 31 years after she attained majority. No
explanation worthy of acceptance has been offered
by the Appellant to show as to why she did not
approach the Court of law within the period of
limitation. At the cost of repetition, we observe that
the Appellant failed to produce any evidence to prove
that the Will was a result of fraud or undue
influence. The same Will has remained unchallenged
until the date of filing of application for
revocation. No acceptable explanation is offered for
such a huge delay of 31 years in approaching the
Court for cancellation or revocation of grant of
probate.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1399 OF 2010

RAMESH NIVRUTTI BHAGWAT  VS. DR. SURENDRA MANOHAR PARAKHE 


S. RAVINDRA BHAT, J.
Dated: October 04, 2019.

1. This appeal by special leave questions the decision of the
Bombay High Court affirming the rejection of an application for
revocation of letters of administration granted to the respondent,
(hereafter “the LOA holder”), in respect of the will of deceased Mrs.
Antoinette Bendre Bhagwat (hereafter “Antoinette”).
2
2. Antoinette was the wife of Balaji Balwant Bhagwat (hereafter
“Balaji”). The couple were permanent residents of California, US
and were US citizens. Balaji predeceased Antoinette, bequeathing
all properties to her. She died on 23.1.1981 at Alhambra, Los
Angeles County, California. U.S.A. In her last will dated
24.6.1977, she bequeathed her properties to her husband. The
will stipulated that in the event of Balaji predeceasing her, the
property was to vest in an inter vivos
trust. The trust was
created by the testatrix and her husband by a deed dated
24.6.1977. The Executor had filed a petition for probate of
Antoinette’s will (Probate Case No. 662463 in the Superior Court
of the State of California for Los Angeles County). It was probated
on 26.2.1981.
3. On 02.11.1982, Dinkar Sambhaji Patole (hereafter “Patole”)
as constituted attorney of the original executor’s successor,
applied to the Bombay High Court (Petition No. 915/ 1982) for
grant of letters of administration with an authenticated copy of
the will annexed to the petition, in respect of the property and
credit of the deceased, in the State of Maharashtra. Patole died
3
during the pendency of proceedings which were continued by Dr.
Surendra Manohar Parakhe who was duly brought on record.
letters of administration were granted by the High Court by order
dated 24.11.1994.
4. Ramesh Nivrutti Bhagwat, the appellant (hereafter
“Ramesh”) claiming to be a relative of Antoinette’s husband, took
out a notice of motion (No. 912 of 1997) in Petition No. 915/ 1982
(i.e. the original administration proceeding). That application
(notice of motion) was allowed to be withdrawn, with liberty to
initiate appropriate proceedings. Ramesh claimed that neither he
nor his father, nor any other family member had notice of the
administration petition. It was alleged that only when the
respondent LOA holder applied for mutation of name of Rural
Gospel and Medical Mission of India, on the basis of the letters
issued by the court, did he come to know about it after making
inquiries in the office of the High Court. Ramesh claimed that on
29.03.1997 he learnt that the respondent had obtained letters of
administration in respect of the will of Balaji by filing another
Petition No. 912/ 97. This was allowed to be withdrawn on
4
01.04.1998. He then filed an application for revocation on
29.07.1999.
5. Ramesh alleged that the LOA holder had not complied with
the direction of the court granting letters of administration by
preparing an inventory of the property and credits within six
months, and further that he did not render accounts of the
property and credits within one year. The other allegation was
that letters of administration were obtained by suppression of
material facts and by misleading the Court. The appellant alleged
that his uncle, late Balaji, had established the Bhagwant Mukti
Ashram and the name of the Ashram was mutated in the revenue
records in respect of the property. The testatrix’s will and that of
Balaji clearly showed that their intention was to use the property
for charitable purposes. The appellant Ramesh also alleged that
the Superior Court of California granted probate to John Graf
Klotzle who was named as the successor by the earlier executor
(Carl Kinsinger) and that the said executor appointed the
respondent as his attorney for obtaining letters of administration.
Therefore, it was alleged that the LOA holder was not appointed
executor by the will. It was alleged that the probate was obtained
5
from the Superior Court of California without notice to the
petitioner or his father or any other relative. It was alleged to have
been obtained by fraud and suppression of material facts and the
said decision is given contrary to, and ignoring the law in force in
India.
6. The LOA holder opposed the application for cancellation of
probate on several grounds, including that the petition was
barred by the law of limitation, inasmuch as such applications
are covered by Article 137 of the Limitation Act,1963, and the
petition ought to have been presented within three years. It was
urged that even if the period of pendency of notice of motion were
excluded, the petition for cancellation of probate was barred by
time. It was also urged that the appellant had no locus standi to
apply for revocation of the grant as he had no interest in the
estate of the deceased on intestacy. It was alleged that the letters
of administration granted by the court was an ancillary grant
under Sections 228 and 271 of the Indian Succession Act, 1925
and could not be revoked as long as the original grant subsisted.
6
The Superior Court of California which probated the will followed
the necessary procedure.
7. A learned Single Judge of the Bombay High Court relied on
Rukminidevi v. Narendra Lal Gupta, (1985) 1 SCC 144, to say that
if a party does not contest proceedings for grant of probate, it
cannot be permitted to question the validity of the will by a
collateral attack in different proceedings. The court held that the
grant being in rem, binds not only persons who are parties but
also others who are not parties to the proceedings, whether they
had notice or not. The probate granted by the competent court is
conclusive on the validity of the will unless revoked in accordance
with law, and no evidence can be admitted to impeach it except in
the proceedings for revocation. Thus, since the original probate
granted by the California court was not challenged by appropriate
proceedings and since the probate was in force, there is no
question of revoking an ancillary grant which was merely to give
effect to the original probate of the will granted by the California
court. The Single Judge also held that since the letters of
administration were granted in ancillary proceedings on
7
25.11.1994 and the petition for its revocation was filed on
21.7.1999, proceedings were time barred. The Single Judge held
that such proceedings are covered by Article 137 of the Limitation
Act, 1963, which requires the application to be filed within 3
years from the date when the right to apply accrues. Even if the
period spent on the notice of motion from 29.3.1997 to 1.4.1998
were excluded from consideration, the petition for revocation was
filed beyond the period of three years from 25.11.1994, as the
three year period expired on 24.11.1997, and the revocation
petition was filed on 21.7.1999. The court, after excluding the
period of seven months and two days spent in pursuing the
remedy of notice of motion, held it to be hopelessly barred by
time. The Single Judge also held that the appellant Ramesh was
not an heir of the deceased a
fact admitted by him in the
rejoinder affidavit. In view of these facts, the application for
revocation was rejected. Ramesh appealed unsuccessfully to the
Division Bench. The judgment of the Division Bench rejected the
sole contention made in the appeal, that the law prescribed no
limitation for an application of cancellation of letters of
administration.
8
8. Learned counsel for the appellant argued that Ramesh had
no notice of the proceedings initiated for grant of letters of
administration and that he and his father (Balaji’s brother)
became aware of the fact only when the properties were sought to
be mutated in the revenue records, pursuant to the letters
granted. It was submitted that the limitation for filing an
application should be calculated from the date of knowledge of the
grant, and not the date of grant.
9. Counsel for the respondent, on the other hand, urged this
court to dismiss the appeal. It was contended that the letters of
administration in respect of the will in question dated 24.06.1977
were granted by the court after due notice and citation;
proceedings for their grant were in rem. Consequently, when
granted, the letters of administration operated against the entire
world. The cause of action, if any, for seeking their cancellation,
therefore, accrued from the date of their grant, and not on the
date of knowledge of grant, in the absence of any allegation of
fraud.
9
10. As evident, the appellant’s application for cancellation of the
letters of administration was rejected concurrently. The only
question urged is whether there is any limitation prescribed and if
not, whether the residuary provision (Article 137 in the schedule
to the Limitation Act, 1963 – hereafter “the Act”) applies and for
which the starting point of limitation is the date of alleged
knowledge of the grant of letters of administration.
11. The relevant provisions dealing with recognition in respect of
grant of probate, of letters of administration in respect of the
probate granted, and cancellation of probate (or letters of
administration) of the Indian Succession Act, 1925, read as
follows:
“Section 228 Administration,
with copy annexed,
of authenticated copy of Will proved abroad
When a Will has been proved and deposited in a Court of
competent jurisdiction situated beyond the limits of the
State, whether within or beyond the limits of 1 India, and
a properly authenticated copy of the Will is produced,
letters of administration may be granted with a copy of
such copy annexed.
Section
263 Revocation
or annulment for just cause
10
The grant of probate or letters of administration may be
revoked or annulled for just cause.
Explanation.—Just cause shall be deemed to exist where—
(a) the proceedings to obtain the grant were defective in
substance; or
(b) the grant was obtained fraudulently by making a false
suggestion, or suggestion, or by concealing from the
Court something material to the case; or
(c) the grant was obtained by means of an untrue
allegation of a fact essential in point of law to justify the
grant, though such allegation was made in ignorance
or inadvertently; or
(d) the grant has become useless and inoperative through
circumstances; or
(e) the person to whom the grant was made has willfully
and without reasonable cause omitted to exhibit an
inventory or account in accordance with the provisions of
Chapter VII of this Part, or has exhibited under that
Chapter an inventory or account which is untrue in a
material respect.
Illustrations
(i) The Court by which the grant was made had no
jurisdiction.
(ii) The grant was made without citing parties who ought
to have been cited.
(iii) The Will of which probate was obtained was forged or
revoked.
11
(iv) A obtained letters of administration to the estate of B,
as his widow, but it has since transpired that she was
never married to him.
(v) A has been taken administration to the estate of B as if
he had died intestate, but a Will has since been
discovered.
(vi) Since probate was granted, a latter Will has been
discovered.
(vii) Since probate was granted, a codicil has been
discovered which revokes or adds to the appointment of
executors under the Will.
(viii) The person to whom probate was, or letters of
administration were, granted has subsequently
become of unsound mind.
276.
Petition for probate(
1) Application for probate or
for letters of administration, with the Will annexed,
shall be made by a petition distinctly written in English or
in the language in ordinary use in proceedings before
this Court in which the application is made, with the Will
or, in the cases mentioned in sections 237, 238 and 239,
a copy, draft, or statement of the contents thereof,
annexed, and stating—
(a) the time of the testator's death,
(b) that the writing annexed is his last Will and
testament,
(c) that it was duly executed,
(d) the amount of assets which are likely to come to
the petitioner's hands, and
(e) when the application is for probate, that the
petitioner is the executor named in the Will.
12
(2) In addition to these particulars, the petition shall
further state (
a) when the application is to the District Judge, that
the deceased at the time of his death had a fixed
place of abode, or had some property, situate within
the jurisdiction of the Judge; and
(b) when the application is to a District Delegate, that
the deceased at the time of his death had a fixed
place of abode within the jurisdiction of such
Delegate.
(3) Where the application is to the District Judge and nay
portion of the assets likely to come to the petitioner's
hands is situate in another State, the petition shall further
state the amount of such assets in each State and the
District Judges within whose jurisdiction such assets are
situate.”
12. The Indian Succession Act, 1925 does not prescribe a
specific period of limitation for the grant of probate, or for moving
an application for cancellation of probate or letters of
administration. The residuary entry Article 137 of the Act, which
covers proceedings for which no period of limitation is stipulated
in the Act, provides for a threeyear
period of limitation. Article
137 reads as follows:
Description Period of
limitation
Time from which
period begins to
run
13
37. Any other
application
for which no
period of
limitation is
provided
elsewhere in this
Division.
Three years When the right to
apply accrues
13. This issue was considered in Kunvarjeet Singh Khandpur v.
Kirandeep Kaur & Ors., (2008) 8 SCC 463. This court negatived
the plea that since the Act prescribes no period of limitation in
regard to matters concerning grant of probate or letters of
administration, there is no time limit. The court followed the
decision in the Kerala State Electricity Board, Trivandrum v. T.P.
Kunhaliumma, (1977) 1 SCR 996 which took note of the change
in the collocation of words in Article 137 of the Limitation Act,
1963 compared with Article 181 of the Limitation Act, 1908, and
held that applications contemplated under Article 137 are not
applications confined to the Code of Civil Procedure, 1908. In the
older Limitation Act of 1908, there was no division between
applications in specified cases and other applications, as in the
14
Limitation Act, 1963. The court held in Kerala State Electricity
Board (supra) that:
“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 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 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.
22.
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 twojudge
bench of this Court in Athani Municipal Council
case and hold that Article 137 of the 1963 Limitation
Act is not confined to applications contemplated by
or under the Code of Civil Procedure.”
14. Applying the ratio in Kerala Electricity Board (supra), the
court, in Kunvarjeet Singh Khandpur (supra) observed that:
“the crucial expression in the petition is "right to
apply". In view of what has been stated by this
Court, Article 137 is clearly applicable to the petition
15
for grant of letters of administration. As rightly
observed by the High Court in such proceedings the
application merely seeks recognition from the Court
to perform a duty because of the nature of the
proceedings it is a continuing right.”
The court then concluded that the right to apply for probate
accrues on the date of death of the testator.
15. Recently, in Sameer Kapoor and Another v. State through
SubDivisional
Magistrate South, New Delhi and Others, 2019
Online SCC 630 (SC), the context was slightly different; the
probate was issued by a foreign court. The executor sought
letters of administration in an Indian court (like in the present
case), under Section 228. The court dealt with the objection of
limitation, and noticed, firstly, that Kunvarjeet Singh Khadapur
(supra) had ruled about applicability of Article 137 for grant of
probate in the first instance. Drawing a distinction from the grant
of probate (or letters of administration) and the recognition of
that, under Section 228, the court (in Sameer Kapoor (supra))
held as follows:
“it can be said that 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
letters of administration issued by a competent court
is conclusive proof of the legal character throughout
the world. That the proceedings filed for grant of
probate or letters of administration is not an action
in law but it is an action in rem. As held by this
Court in the case of Kunvarjeet Singh Khandpur
(supra), an application for grant of probate or letters
of administration is for the court's permission to
perform a legal duty created by a will or for
recognition as a testamentary trustee and is a
continuous right which can be exercised any time
after the death of the deceased, as long as the right
to do so survives and the object of the trust exists or
any part of the trust, if created, remains to be
executed.”
16. The decision in Lynette Fernandes v. Gertie Mathias, (2018)
1 SCC 271, dealt with the precise issue of the period of limitation
applicable for an application for cancellation of a probate or
letters of administration. This court held as follows:
“One must keep in mind that the grant of probate by
a Competent Court operates as a judgment in rem
and once the probate to the Will is granted, then
such probate is good not only in respect of the
parties to the proceedings, but against the world. If
the probate is granted, the same operates from the
date of the grant of the probate for the purpose of
limitation Under Article 137 of the Limitation Act in
proceedings for revocation of probate. In this matter,
as mentioned supra, the Appellant was a minor at
the time of grant of probate. She attained majority on
09.09.1965. She got married on 27.10.1965. In our

considered opinion, three years limitation as
prescribed Under Article 137 runs from the date of
the Appellant attaining the age of majority i.e. three
years from 09.09.1965. The Appellant did not choose
to initiate any proceedings till the year 25.01.1996
i.e., a good 31 years after she attained majority. No
explanation worthy of acceptance has been offered
by the Appellant to show as to why she did not
approach the Court of law within the period of
limitation. At the cost of repetition, we observe that
the Appellant failed to produce any evidence to prove
that the Will was a result of fraud or undue
influence. The same Will has remained unchallenged
until the date of filing of application for
revocation. No acceptable explanation is offered for
such a huge delay of 31 years in approaching the
Court for cancellation or revocation of grant of
probate.”
17. In the present case, the letters of administration were
granted in ancillary proceedings on 25.11.1994. The High Court
took note of the fact that the notice of motion (in the disposed of
proceeding) was filed on 29.03.1997; it was withdrawn on
01.04.1998. The petition for revocation of the letters of
administration were filed on 29.7.1999. Proceedings were clearly
time barred, given that the original grant of the ancillary letters
took place on 25.11.1994; they constituted notice to all
concerned. Clearly, the petition for revocation of letters of
administration was time barred. It is accordingly held that there

is no infirmity in the concurrent findings impugned; the appeal
fails and is dismissed with no order as to costs.
........................................J.
[ARUN MISHRA]
........................................J.
[VINEET SARAN]
........................................J.
[S. RAVINDRA BHAT]
New Delhi,
October 04, 2019.
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