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.
Citation: 2020(2) MHLJ 28

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How to ascertain limitation for making application to get letters of administration?

 In the aforesaid decision, this Court also considered
and referred to paragraph 16 of the decision of the Bombay High
Court in the case of Vasudev Daulatram Sadarangani (supra) in
paragraph 15, which reads as follows:
“16. Rejecting Mr. Dalpatrai’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;
(b) The assumption that under Article 137 the right to
apply necessarily accrues on the date of the death of the
deceased, is unwarranted;
(c) Such an application 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;

(d) The right to apply would accrue when it becomes
necessary to apply which may not necessarily be within 3
years from the date of the deceased’s death;
(e) Delay beyond 3 years after the deceased’s death
would arouse suspicion and greater the delay, greater
would be the suspicion;
(f) Such delay must be explained, but cannot be
equated with the absolute bar of limitation; and
(g) Once execution and attestation are proved,
suspicion of delay no longer operates.”
This Court did not agree with/approve conclusion (b).
However, approved conclusion (c), reproduced hereinabove.
17. Therefore, considering the law laid down by this Court
in the case of Kunvarjeet Singh Khandpur (supra), 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.
Therefore, even if the will is probated by any court
mentioned in Section 228 of the Act, right to get the letters of
administration is a continuous right which can be exercised any
time, 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.
18. Applying the law laid down by this Court in the
aforesaid decision and the observations made hereinabove, the
submission on behalf of the appellants that Probate Case No.
15/2001 filed by respondent no.2 for letters of administration
under Section 228 of the Act, read with Section 276 of the Act is
barred by law of limitation, cannot be accepted. At this stage, it
is required to be noted that even in the plaint, it is specifically
pleaded that after passing away of the father of the parties in the

year 2000, the appellants started intermeddling with properties
bequeathed to respondent no.2, which were situated in Delhi
and, therefore, left with no option, he was compelled to apply for
letters of administration. Therefore, even as per the pleadings in
the application, the cause of action started from the date on
which the appellants started intermeddling with the properties
bequeathed to respondent no.2, after passing away of the father
of the parties in the year 2000. Therefore, in the facts and
circumstances of the case, both the learned Single Judge and the
Division Bench have rightly refused to reject the application in
exercise of powers under Order VII Rule 11 of the CPC. In the
facts and circumstances of the case and as observed
hereinabove, it cannot be said that the application for letters of
administration was clearly barred by the law of limitation which
was required to be rejected in exercise of powers under Order VII
rule 11(d) of the CPC. We are in complete agreement with the
view taken by the High Court.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10482 OF 2013

Sameer Kapoor  Vs The State(New Delhi )

Dated:APRIL 29, 2019.

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Whether arbitration clause in original agreement shall extinguish if said agreement is modified?

The first question, that arises for consideration is, whether the arbitration clause incorporated in the original agreement, dated 03.05.1958, can be stated to be subsisting and enforceable between the parties, or whether the same stood extinguished? Having given our thoughtful consideration to the issue in hand, keeping in view Clause 11 of the supplementary agreement dated 27.10.1988, we are satisfied, that the original arbitral clause, contained in the agreement dated 03.05.1958, subsisted and was never extinguished. We say so because, Clause 11, extracted above, clearly expressed, that the supplementary agreements(s) only altered the modifications provided for, and such of the terms and conditions, as were not modified "...shall remain in force and effect...". Since the arbitration Clause 16, was admittedly never modified/altered, it would necessarily not be considered as having been extinguished. In the above view of the matter, we must also express our satisfaction, that the dispute(s) between the parties, under their contractual obligations, were arbitrable.

IN THE SUPREME COURT OF INDIA

C.A. No. 3180 of 2007

Decided On: 19.04.2017

Grasim Industries Ltd. Vs.  State of Kerala

Hon'ble Judges/Coram:

J.S. Khehar, C.J.I., Dr. D.Y. Chandrachud and Sanjay Kishan Kaul, JJ.

Citation: (2018) 14 SCC 265

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Whether Article 137 of limitation Act is applicable for appointment of arbitrator?

 It is not in dispute between the parties that Article 137 would apply to application filed under Section 11 of Act, 1996. In Major (Retd.) Inder Singh Rekhi v. Delhi Development Authority, (1998) 2 SCC 338, Supreme Court held that in application for appointment of Arbitrator Article 137 of the Limitation Act will apply.

5. Article 137 of the Limitation Act, 1963 is applicable to applications both under the Civil Procedure Code and under the Special Acts. Article 137 constitutes the residuary Article in regard to applications. The starting point of limitation under Article 137 is the date when "the right to apply arises". Article 137 being a residuary Article to be adopted to different classes of applications, the expression "the right to apply" is expression of a broad common law principle and it has to be interpreted according to the circumstances of each case. In Ramanna v. Nallaparaju, 1995 (2) SCR 936, Supreme Court has held that "the right to apply" means "the right to apply first arises".

6. Under the Arbitration and Conciliation Act, 1996, right to apply to the court having jurisdiction would arise from the date such controversy arises between the parties.

IN THE HIGH COURT OF ALLAHABAD

Arbitration Application No. 69 of 2017

Decided On: 14.09.2017

 Central Electronics Limited Vs.  Friends Cable Industries

Hon'ble Judges/Coram:

Suneet Kumar, J.

Citation: 2017 (125) ALR 588.

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