JUDGMENT Sunil Ambwani, J.
1. This Testamentary Suit was filed on 26.7.1988, as Testamentary Case No. 10 of 1988 by Sri Chandra Kishore Dixit, S/o Sri Kewal Krishna Dixit, for grant of 'Letters of Administration' with a copy of will, in the matter of credits and assets of late Sri Shambhu Dayalu Shashtri, S/o Sri Har Dayalu, resident of Anand Kuteer Tundla, Tehsil Itmatpur, Tundlla, district Agra, with the averments that the deceased, testator, the maternal grand father of the petitioner died on 22.5.1947 leaving behind a will dated 12.4.1947 of his entire properties to him, at his residence at Tundla. The will was attested by two witnesses namely Shri Anand Behari Lal and Shri Gaya Prasad Sharma. Both the witnesses are not alive. The original will was kept at Anand Kuteer', Tundla with petitioner's father Sri Kewal Krishna Dixit. However, after his death petitioner's brother Shri Sukh Swroop Anand Dixit, (the caveator/objector/defendant) had removed the original will by breaking the lock of the room. The original will may be summoned from him, as he his turned hostile to the petitioner. The application has been filed after forty one years and three months of the death of the testator.
2. In the affidavit of valuation only one house known as 'Anand Kuteer', of Tundla, Post Office Tundla, Tehsil Etmatpur, District Agra valued at Rupees one lakh is given. The plaintiff has referred to an Original Suit No. 471 of 1949 between Smt. Champa Devi v. Smt. Nandini Devi and Chandra Kishore Dixit ( the petitioner) . The suit was decided by Munsif on 15.4.1951 on the basis of compromise signed by Smt. Champa Devi, Smt. Nandini Devi, the mother of the petitioner and sister of Smt. Champa Devi and the plaintiff Shri Chandra Kishore Dixit. The compromise had acknowledged the will.
3. During the pendency of the suit, orders were passed by this Court with regard to rent received from the tenants of 'Anand Kuteer' and have been modified from time to time.
4. In application filed on 16.10.1990, the plaintiff has alleged in para 5 that, the necessity for 'Letters of Administration' arose on account of non-payment of rent by the tenants living in different portions of the house and has referred to certain orders passed by this Court with regard to deposit of rent.
5. The Court by its order dated 12.11.1997 held that the caveator has locus standi to contest the 'proceeding. The order was challenged in Special Appeal No. 592 of 1992. The Division Bench set aside the order dated 12.11.1992 with a direction to first frame a specific issue and thereafter to hear and decide it, and consequently on 26.10.1998 this Court framed preliminary issues as follows;
whether the caveator respondent has any interest or locus standi to oppose the testamentary proceedings in the light of the objections (counter affidavit filed by him)
6. This preliminary issue was decided by order dated 10.5.2000, again holding that the caveator respondent has interest and locus standi to oppose the testamentary proceedings. The findings recorded by this Court in its order dated 10.5.2000 are quoted as below;
I have judicially weighed the respective contentions of the learned counsel for the parties in the light of the arguments advanced at the bar keeping in view the legal position. Indeed, it is of paramount importance that the caveator is not a stranger. He is the own brother of the petitioner and the maternal grandson of the deceased ' Shambhu Dayal Shashtri. The petitioner himself has shown the caveator as one of the next of the kin of the deceased in paragraph 4 of his petition at serial No. (iii). In all 13 persons including-himself have been mentioned as the next of the kin of the deceased Shambhu Dayal Shashtri. It is also apparent that the petitioner is staking his claim in these testamentary proceedings on the will allegedly executed by the deceased Shambhu Dayal Shashtri on 12.4.1947. In case the will falls through. the caveator being one of the 13 next of the kin of the deceased would be entitled to 1/13 share in the disputed property. The testamentary court alone has the exclusive jurisdiction to decide as to the genuineness or otherwise of the will set up by the petitioner as held by the Apex Court in the case of Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors. . The Apex Court in the said case making reference to an earlier decision in Ishwardeo Narain Singh v. Smt. Kanta Devi and Ors. AIR 1954 Supreme Court 280 held that the Court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law. The question whether a particular bequest is good or bad is not within the purview of the probate Court. Therefore, the only issue with which it is concerned is as to the genuineness and due execution of the will and the Court itself is under duty to determine it. It does no more than establish the factum of the will and the legal character of the executor. It does not decide any question of title or of the existence of the property itself.
Considered in the light of the pronouncements of the Apex Court, the petitioner who has set up the will and is seeking letters of Administration staking his claim thereon in these testamentary proceedings, has to face the challenge offered as to the genuineness of the will by the caveator who happens to be his own brother and one of the next of kin of the deceased. The caveator does have an interest and locus standi to oppose these testamentary proceedings have regard to the pith and substance of" the objections raised by him through his counter affidavits. He cannot be forbidden from doing so on the premise that he is claiming through his mother who had entered into a compromise in the suit of 1949 and had accepted the genuineness of the will in favour of the petitioner. As observed earlier, the caveator himself was not a party to that suit. Moreover, if the petitioner through that the compromise decree was sufficient to clinch the controversy in his favour, then there would have been no necessity for his corning up before this court in testamentary proceedings to seek Letters of Administration on the basis of the will allegedly executed by the deceased Shambhu Dayal Shashtri on 12.4.1947. To adjudicate upon the genuineness or otherwise of the will is the exclusive jurisdiction of this testamentary court. When he is seeking Letters of Administration of the strength of will in question, the question of its genuineness has to be adjudicated upon by this Court and the caveator being one of the next of the kin of the deceased definitely has interest, right and locus standi to challenge the right of the petitioner founded on the will. It cannot be so held that the question of grant of Letters of Administration to the petitioner on the basis of the will in question is simply a matter of formality and challenge to the genuineness of the will at the instance of the one of the next of the kin of the deceased is foreclosed because of the compromise decree having been passed in the suit of 1947 referred to above.
To conclude, I decide the preliminary issue by holding that the caveator respondent has the interest and locus standi to oppose these testamentary proceedings in view of the objections raised by him through his counter affidavits.
The preliminary issue is decided accordingly against the petitioner.
The office is directed to convert these testamentary proceedings into suit. List the case for framing of other issues.
7. On 25.7.2000 the Court framed four issues between the parties namely;
1. Whether the alleged will dated 12.4.1947 was executed by late Shambhoo Dayal Sashtrit and same is genuine;
2. In whose possessions the alleged original will dated 12.4.1947 was and is;
3. Whether the plaintiff is entitled to Letters of Administration in view of averments made in para 15 of the petitioner/plaint and
4. to what reliefs, if any, the plaintiff entitled.
8. The matter has been adjourned for one or other reason and mostly on the illness slips of either of the parties for last five years. On 27.10.2005 following order was passed framing another preliminary issue and that thereafter on 8.11.2005 both the parties were heard and have also filed their written submissions.
9. From the facts and documents filed on record it is apparent that:
a. The plaintiff and defendant are real brothers. The plaintiff is claiming the property from his maternal grand father, who died on 22.5.1947, through the unregistered Will dated 12.4.1947, in his favour.
b. The original copy of the Will has not been filed and is alleged to be with the defendant, who has denied its execution.
c. Both the attesting witnesses of the Will are not alive.
d. The Will does not give the administration of properties to the plaintiff, or make him executor of the Will. .
e. The plaintiff on his own admission was aware of the Wil. which was referred to in Original Suit No. 471 of 1949 in which the plaintiff was party as defendant No. 2, and in which plaintiff had given up the exclusive right to the property'under bequest, in favour of his mother's sister.Smt. Champa Devi.
f. The testamentary case was filed by the plaintiff after forty one years and three months of the death of the testator.
10. Before I proceed to consider the submissions and matter of limitation, it is worthwhile to refer to Section 298 of the Indian Succession Act, which gives a discretion to the court to refuse any application for 'Letters of Administration' made under this Act.
Section 298- Power to refuse letters of administration- Notwithstanding anything herein before contained it shall where the deceased was a Mohammedan, Buddhist or exempted person or a Hindu, Sikh, or Jain to whom section 47 does not apply be in the discretion of the Court to make an order refusing for the reasons to be recorded by it in writing to grant any application for letters of administration made under this act.
11. Section 57 of the Act applies the provisions of Part VI of the Act to all 'wills' and 'codicils' made by a Hindu, Buddhist, Sikha, Jain and after 1.9.1870, within the territories which at the said date, were subject to Lt. Governor of Bengal, and within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay and to all such 'wills' and 'codicils', outside those territories and limits, so far as it relates to immovable property situate within those territories or limits, and to all wills and codicils, made by any Hindu, Buddhist, Sikh and Jain after first day of January 27 to which those provisions are not applicable by clauses (a) and (b).
12. The discretion under Section 298 to refuse to grant 'Letters of Administration' are not applicable where a person seeking probate, is selected by the testator for administration of his assets. It is applicable to those applications for 'Letters of Administration', where the applicant requires administration of the properties for the benefit of himself and other heirs. The discretion, however, is given to the Court where the bequests vests the properties exclusively to the applicant. In the present case will declares that after the death of the testator, the entire properties shall be owned by the plaintiff Sri Chandra Kishore Dixit. The will as such prefers only the plaintiff as against all of heirs to be the absolute owners of the properties and does not seek any administration of properties.
13. Now coming to the preliminary issue it is contended by Sri N.B. Nigam relying upon in Kerala State Electricity Board v. T.P. Kunhaliamma ; Ramanand Thakur v. Parmanand Thakur ; Smt. Shakuntala Devi v. L.M. Mathur 1986 AWC 120; Basudev Daulatnam Sadarangrri v. Sajni Prem Lalwani ; State of Punjab v. Vishwajit Singh ; Delhi Development Authority v. Nanak Chand ; Commissioner Jalandhar Division v. Mohan Krishan Abrof & B. Manjunatha Prabhu v. C.G. Srinivas ; that there is no limitation prescribed in the Indian Succession Act for filing of application for probate and for Letters of Administration on the basis of a will. The right to apply for probate accrues from day to day and the cause of action for making such application arises every moment so long as the will remains unprobated. An 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 the object of the trusts exists or any part of the trust, if created remains to be executed.
14. Sri N.B. Nigam further submits that residuary Article 137 of the Limitation Act 1963, has no application to the applications for letters of administration, with will attached, as in such case there is no date and fixed time when the right to apply accrues. Such a right accrues to the applicant so long as the will is not probated or 'Letters of Administration are not issued for its execution. He submits that the residuary article as such is not attracted and that there is no limitation prescribed for applying for letters of administration even if the plaintiff had knowledge of the will. According to Sri N.B. Nigam the application filed even after 41 years cannot be dismissed on the ground of limitation and that this Court has limited jurisdiction in such matters to consider the effect of delay as a circumstance while adjudicating the validity of the will, after the evidence is closed.
15. Sri Siddharth Verma holding brief of Sri S.K. Verma submits that Article 137 of the Indian Limitation Act is attracted in the case. The application for 'Letters of Administration' is filed under Section 278 of the Indian .Succession Act. Section 278(1)(c) of the Succession Act itself states that the right of a person, who is praying for the issuing of letters of Administration is to be specified along with the property, which shall come to him. In this view of the matter there is a clear application of Article 137 of the Indian Limitation Act.
16. In the instant case he submits that the application is to be converted into a suit under Rule 39 of Chapter XXX of the Rules of the Court. The preamble of the Limitation Act itself shows that it is an act consolidate and amende the law of limitation of suit and other proceedings and for purposes connected therewith". Since the contentious matter is converted into a suit, the Limitation Act 1963 will apply with all force and thus there is absolutely no scope to escape from Article 137 of the Indian Limitation Act. The Supreme Court decisions in and have stated that in all proceedings Article 137 of the Limitation Act will apply but there is no specific mention that it would also apply to an application for getting a Letters of Administration. In view of the fact that the contentious matters for issuing of Letters of Administration are converted into suits, Article 137 of the Limitation Act would apply. Any decision, which says that the issuing of the Letters of Administration is only for the purposes of duty, is absolutely erroneous. Thus is on a wrong premise. The application for the issuing of the Letters of Administration is filed for arrogating the rights flowing from the will. It is not a performance of a duty but for the enforcement of a right.
17. Shri Siddhartha Verma further states that the law of limitation is a law of repose. Things cannot wait indefinitely as rights accrue from time to time. The clock cannot be set back when the rights of others have accrued. In the instant case also the same has happened. Shambhu Dayal Shastri, the alleged testator died on 22,5.1947 allegedly leaving behind be the will date 12.4.1947 in favour of plaintiff Chandra Kishore Dikshit. There was a civil litigation between the two daughters of Shambhu Dayalu Shastri namely Nandini and Champa. O.S. No. 471 of 1949 was filed. Champa got her one half share. The Court thus ignored the alleged will, in the presence of the plaintiff Chandra Kishore Dikshit. The other one half share went to Nandini. A compromise is said to have been arrived at between Nandani, Champa and Chandra Kishore Dixit. The compromise did not see the light of the day and then Nandani continued to be in effective control and possession of one half of the properties of Shambhu Dayalu Shastri. Nandani died on 25.10.1960.After the death of Nandani the properties came under the effective control of her husband Kewal Krishna Dixit, who began to administer the property. Kewal Krishna Dixit died on 10.10.1987 and after his death a sense of dishonesty over took Chandra Kishore Dixit and then he filed a very belated application for the issuing of a letters of administration.
18. In Suit No. 471 of 1949 Champa Devi had questioned the validity of the will said to have been executed by Shambhu Dayal Shastri on 12.4.1947. The cause of action thus arose for getting the Letters of Administration or Probate on the date when Champa Devi questioned the validity of the will in O.S. No. 471 of 1949.
19. Lastly Sri Verma submits that the application must be rejected on account of the fact that the alleged original will has not been filed along with the application for the issuing of the 'Letters of Administration', which is essential under Rule 7 of chapter XXX of the rules of the Court and Section 276 of the Indian Succession Act.
20. A 'Probate' is defined under Section 2(f) of the Indian Succession Act to mean the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the asset of the testator. The 'will' under Section 2(h) is defined to mean the legal declaration of the execution of the testator with respect to his property which he desires to be carried into effect after his death. The 'testator' in Section 2(a) means a person appointed by competent authority to administer the estate of a deceased person when there is no executor. 'Executor' means a person, whom the execution of the last will of a deceased person is by testator's appointment confided. Where a person governed by Indian Succession Act dies without leaving a will i.e. intestate, a person is appointed to administer his asset. A person so appointed is called an administrator. He is granted 'Letters of Administration; to the asset of the deceased. The 'Letters of Administration are also granted when a person dies leaving a will but without appointing an executor; or where deceased has appointed an executor who is legally incapable or refuses to act or die before the testator or before he had approved the will. Letters of administration may also be granted if the executor dies after having proved the will but before he has administered the assets of the deceased or on the death of a person leaving will, but without appointing an executor.
21. A person acting under a grant of 'Letters of Administration' with will annexed is known as an administrator and representative of the deceased. He must ascertain the assets and liabilities of the deceased, collect the assets, pay all the debts and liabilities on the assets and to pay pecuniary legacy. He must pay such debts and liabilities as are properly payable, prepare the accounts, give details of the assets, receive payment and pay the balance due to the residuary beneficiaries. The personal representative whether executor or administrator is constituted by law as a separate entity, than his personal capacity. If the executor become bankrupt, the properties which he holds as executor cannot be touched by the receiver in bankruptcy and a decree holder against the executor or administrator for personal capacity cannot proceed against the assets.
22. Where a will does not appoint a person as an executor or there is no residuary beneficiary in whose favour the asset is to be administered, and that the bequeath only operate to deviate from the line of succession and vests the property in favour of the applicant, there is no trust created, to execute or administer the will. There is no separate legal entity created for administering the assets, and in such case the application for grant of administration of the estate is in fact an application seeking declaration of the devolution of the properties with its credits, to be vested in him. In such case it is not necessary under Section 57 of the Indian Succession Act to obtain 'Letters of Administration' for those Hindus, Budhs, Sikhas or Jainas who were not living within territories which were subject to Lt. Governor of Bengal or within the local limits of the ordinary civil jurisdiction of the High Court of Judicature of Madras and Bombay. In respect of immovable property situate outside those territories and limits. The applicant, if he is the sole beneficiary under a will need not apply for 'Letters of Administration'. In such case no trust is created, as the will does not require to be executed. The beneficiary in such case receives the property to himself and acquires the right, if he seeks to apply for 'Letters of Administration' to himself.
23. In Kerela State Electricity Board v. T.P.K.K. Amson and Besom Kerela (1976) 4 SCC 63 it was held that Article 137 of the Limitation Act 1963 shall apply to any petition or application filed in a Civil Court. The judgement was followed in Major (Retd.) Inter Singh Rekhi v. Deli Development Authority . The period of three years under Article 137 starts when the 'right to apply' accrues. In a case where the applicant is sole beneficiary under the will and is not required to administer the properties for the benefit of other persons and is aware of the will which has been subject matter of litigation in which he was a party, the right to apply would accrue from the date when the person making the will died. If any one doubts or challenges the bequest he may prove the will in such proceedings as an actionable claim. All the cases relied upon by counsel for the plaintiff, in support of his submission that Article 137 of the Limitation Act would apply to the grant of probate or letter of administration with will attached are cases where the will requires execution or the administration by the applicant. In 1989 T.L.N.G. 333 (338) (Mad.) it was held that there can be no difficulty at all in such cases to find out when the right to apply accrues.
24. In Smt. Shakuntla Devi v. Ladley Mohan Mathur 1986 AWC 120 while deciding the appeal against grant of probate with will executed by the deceased, a Division Bench of this Court observed without discussing the question of limitation that there is no limitation provided in seeking the probate by a duly executed will. In State of Punjab v. Vishwajeet Singh and Ors. AIR 1987 Pun. and Haryana 126 the probate case was filed for grant of letter of administration on the basis of a will. In para 25 and 26 returning the finding on issue No. 6 it was held that a duty is cast by the author of a will to administer his asset after his death and an application for probate and letters of administration on the basis of a will is made to seek permission of the court to perform that duty. The right to apply continues till the duty is not performed. The Punjab and Haryana High Court relied upon the Division Bench judgement of Madras High Court in Ganna Mathu Opadesi v. Bana Koyal Pillai Nadan 1894 I.L.R. 17 Madras 379 in which it was held that the application of probate is of the nature of credit by a will for recognition as a testamentary trustee and right to apply continues so long as the object of the trust exists and any part of the trust remains to be executed. The Bench also relied upon Kalinath Chatterje v. Nagendra Nath Chatterji and Ramanand Thakur v. Parmanend Thakur AIR Patna 1987. In these cases the court dealing with probate of' letter of administration based on a will where something was required by the applicant to be performed as a trustee in the will.
25. In Yashudev Daulat Ram Soda v. Sajni Prem Lalvani the Bombay high Court distinguished Kerela State Electricity Board v. T.P. Kunha Liumma in which it was held that Article 137 has made a departure from Article 181 of the old Limitation Act. Sections 2(a) and Section 2(b) of the Limitation Act 1963, have been amended and Article 137 now falls in a separate chapter in the schedule. It was held by the Supreme Court that Article 137 of the 1963 Limitation Act will apply to a petition or application filed under any Act and shall not be confined only to civil court. Justice Lentin held that the assumption that under Article 137 the right to apply accrues on the date of death of the deceased is unwarranted. The application for probate, letters of administration with will, or for recognition as a testamentary trustee is a continuous right which can be exercised at any time after the death of the deceased so long as the right to do so survives and object of the trust exists or any part of the trust if created remains to be executed.
26. In the present case as discussed above the will is alleged to be executed by late Sri Shambhoo Dayalu Shashtri on 2.4.1947. The testator died on 22.5.1947. The plaintiff has clearly stated in the application that in the compromise in Suit No. 471 of 1949 dated 4.4.1991 to which he was a party, a reference was made to the will. He claims to be only a beneficiary under the will from his maternal grand father, to the exclusion of all others, to his only property namely 'Anand Kuteer, deviating from the line of succession. The applicant, however, chose to sit quite over the matter for 41 years and filed the application for grant of 'Letters of Administration' with will, on 26.7.1988. The Testamentary case No. 10 of 1989 now registered as Testamentary Suit No. 10 of 2000 is thus clearly barred by law of limitation as provided under the residuary Article 137 of the Limitation Act 1963.
27. Even otherwise looking to the facts and circumstances in which only a photocopy of the will has been produced, which is alleged to be in possession of the defendant, and the execution of which has been denied by the defendant, of which both the attesting witnesses have died, and the propounder claims to have written the will himself, he is not entitled to the prayers made in the suit. The Court also declines to exercise its discretion under Section 298 of the Indian Succession Act 1925 to grant the relief.
28. The Suit is dismissed. The defendant shall be entitled to the cost of the proceedings.