Article 137 Limitation Act Applicable In Probate Proceedings; 3 Years Limitation Period To Be Reckoned From Date When Right to Apply same Accrues: Karnataka HC

This Original Side Appeal before the High Court called in question the order made by a Single Judge whereby, the Respondents’ Application having been favoured, the Testamentary Original Suit filed by the appellant was dismissed as ‘barred by limitation’.

The Division Bench comprising Justice Krishna S Dixit & Justice C M Joshi said, “...the proceedings for the grant of probate have to be treated as having been instituted within the period of limitation prescribed in residuary Article 137 of 1963 Act.”

Adcoate Manmohan P N represented the Appellant while Advocate D Nagaraj represented the Respondents.

The Appellant is the seventh successive Peethaadhipati (Pontiff) of Gurugunda Bramheshwara Swamy Mutt, also known as Nanjappaiah Mutt in Pattanayakanahalli of Tumkur District. It was the case of Appellant that in the Mutt tradition, the sitting Pontiff chooses a suitable person as his disciple (shishya) who can possibly become his successor-in-office, if the Pontiff executes a Will to that effect and breathes his last. The appellant instituted proceedings in Probate in respect of a registered WILL allegedly executed by the erstwhile fifth Pontiff of the Mutt, in succession. The Respondents came to be impleaded as the Defendants and the same came to be registered as Testamentary Original Suit. The Respondents filed application under Order VII Rule 11(d) of Civil Procedure Code, 1908 seeking dismissal of the said proceeding on the ground that it was time barred. The Single Judge having favoured the same, aggrieved thereby appellant preferred the instant Appeal.

The appellant’s Counsel contended that a Hindu Will which does not comprise property situate in any Presidency Towns, requires no probate, no such WILL becomes invalid by the mere run of time. It was also argued that the right to seek probate can be exercised at any time; therefore probate proceedings cannot be resisted on the ground of delay & limitation, It was also submitted that they involve elements of continuing cause of action. On such grounds the appellant sought for the invalidation of impugned order and remand of the matter for due adjudication on merits.

The respondent resisted the Appeal contending that Article 137 of the Schedule to The Limitation Act, 1963 is applicable to probate proceedings also even when there is a recurring cause of action. As per the Respondent, once such cause accrues, limitation becomes applicable. Such a cause accrued to the Appellant when his application filed under Order XXII Rules 2 & 4 of Civil Procedure Code, 1908 was rejected in 1995 inasmuch as the said application was founded on subject WILL.

The Bench observed that WILLs by their very nature are ambulatory and therefore, they can be rescinded or codicilled by their Maker at any time and any number of times too. WILLs, be they executed by persons to whom personal laws apply, be they privileged or unprivileged, do not commit legal suicide by efflux of time, per se.

“It has been well settled that neither they attract levy of stamp duty nor compulsory registration, in the State of Karnataka. It is not that all WILLs need to be compulsorily probated either. A Hindu Will, not comprising any property situate in any of the Presidency Towns, is optionally probatable vide Clarence Pais vs. Union of India(2001). The WILL in question admittedly does not comprise any such property and therefore, probating it is not compulsory”, the Bench added

One of the issues before the Bench was whether probate proceedings do attract law of limitation, even if they involve continuing cause of action.

Referring to the judgment in Sameer Kapoor vs. State Through Subdivision Magistrate (2001), the Bench said, “ The Limitation Act, 1963 applies to the proceedings founded on WILLs as it does, to other proceedings, subject to all just exceptions. There being no specific Article in the Schedule to the said Act that prescribes any limitation period for instituting probate proceedings, the residuary provision i.e., Article 137 would become applicable. It provides that for any application for which no specific period of limitation is prescribed, three years would be the limitation, and this period has to be reckoned from the date when the right to apply accrues.”

The Bench also affirmed the appellant’s submission that no choate cause of action accrued for instituting the probate proceeding, merely because his L.R. application in the said suit was rejected. It was further noticed that the testator of the WILL in question had filed the suit in 1988 and died pendente lite. Appellant’s L.R. application founded on the WILL in question came to be negatived in 1995. Matter was carried and came to be disposed off in 1996 liquidating the finding as to the invalidity of WILL recorded by the Munisiff. Meanwhile, a suit was filed in 1996 in which one of the issues related to validity of the same WILL. This showed that the issue as to validity of the WILL in question was kept very much alive and that it was being examined too.The above suit came to be dismissed in 2016, of course with a hefty cost of Rs.25,000. As per the Bench, only thereafter, the cause of action, for applying for the grant of probate became choate and the right to apply for probate substantively accrued to the appellant only then. The appellant thrn instituted Probate proceedings in 2017.

The Bench thus held, “The Appellant was entitled to have the period spent during the pendency of subject two suits i.e., O.S.No.98/1988 dismissed on 14.07.1995 & & O.S.No.1/1996 dismissed on 28.07.2016 discounted consistent with the rule enacted in section 14 of the 1963 Act…Had discount as mentioned above been given, the proceedings for the grant of probate have to be treated as having been instituted within the period of limitation prescribed in residuary Article 137 of 1963 Act.”

Allowing the appeal, the Bench set aside the impugned judgement of the Single Judge and remanded the matter for being tried & disposed off on merits, in accordance with law.