SAMEER KAPOOR AND ANOTHERversusTHE STATE THROUGH SUB-DIVISION MAGISTRATE SOUTH, NEW DELHI AND OTHERS

1104                      [2019]REPORTS
                SUPREME COURT    6 S.C.R. 1104                 [2019] 6 S.C.R.


 A                    SAMEER KAPOOR AND ANOTHER
                                          v.
       THE STATE THROUGH SUB-DIVISION MAGISTRATE SOUTH,
                    NEW DELHI AND OTHERS
 B                        (Civil Appeal No. 10482 of 2013)
                                  APRIL 29, 2019
                [L. NAGESWARA RAO AND M.R. SHAH, JJ.]
             Succession Act, 1925:
 C           s. 276 – Applications for grant of probate or letters of
       administration – Applicability of Art. 137 – Held: Art. 137 is
       applicable to the applications for grant of probate or letters of
       administration – Limitation Act, 1963 – Art. 137.
              ss. 276 and 228 – Application under, for probate or for letters
 D     of administration – If barred by limitation – Held: In a proceeding,
       or in an application filed for grant of probate or letters of
       administration, no right is asserted or claimed by the applicant –
       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 – Even if the Will is probated
 E     by any court mentioned in s. 228, 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
       – On facts, probate case filed by respondent no.2 for letters of
 F     administration u/s. 228/276 not barred by limitation – After passing
       away of the testator, in 2000, the appellants started intermeddling
       with properties bequeathed to respondent no.2, situated in Delhi
       and, thus, he was compelled to apply for letters of administration –
       Cause of action started from the date on which the appellants started
       intermeddling with the properties bequeathed to respondent no.2 –
 G     Thus, the application for letters of administration not barred by
       limitation – High Court rightly refused to reject the plaint in exercise
       of powers u/Or. VII r. 11 – Limitation Act, 1963 – Art. 137.


 H
                                      1104
      SAMEER KAPOOR v. STATE THR. SUB-DIVISION                          1105
           MAGISTRATE SOUTH, NEW DELHI

      Dismissing the appeal, the Court                                  A
      HELD: 1.1 Article 137 of the Limitation Act, 1963 shall be
applicable to the applications for grant of probate or letters of
administration. Application under Section 276 and 228 of the
Succession Act shall be covered by Article 137. [Para 10, 11]
[1113-F; G]                                                             B
      Kunvarjeet Singh Khandpur v. Kirandeep Kaur
      (2008) 8 SCC 463 : [2008] 5 SCR 1057 ; Krishan
      Kumar Sharma v. Rajesh Kumar Sharma (2009) 11 SCC
      537 – relied on.
      1.2 As per Article 137 of the Limitation Act, the period of       C
limitation prescribed is three years and the three years begin to
run when the ‘right to apply’ accrues. The crucial expression
under Article 137 of the Limitation Act is ‘right to apply’.
[Para 12.1][1114-B]
      1.3 When an application under Section 276 of the Act is           D
submitted for probate or for letters of administration with Will, if
any objection is raised by any body with respect to execution of
the Will, in that case, the applicant is required to prove the Will
and thereafter the Will shall be probated and the court may pass
an order for letters of administration. However, in a case where a      E
Will has been proved or deposited in a court of competent
jurisdiction situated beyond the limits of the State, whether within
or beyond the limits of India, in that case, as provided under
Section 228 of the Act, when a properly authenticated copy of the
Will is produced, the letters of administration may be granted in
favour of such person. Meaning thereby, in such a situation, the        F
Will is not required to be proved again and it shall be conclusive.
Therefore, Section 228 of the Act shall be an enabling provision
and it confers an additional right to apply for letters of
administration on the basis of such authenticated copy of the Will.
Therefore, as rightly observed by the Single Judge and the              G
Division Bench that Section 228 is akin to Section 276 of the Act.
[Para 14.1][1115-E-H; 1116-A]
     1.4 In a proceeding, or in an application filed for grant of
probate or letters of administration, no right is asserted or claimed
                                                                        H
1106            SUPREME COURT REPORTS                         [2019] 6 S.C.R.


 A     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. An application for grant of probate or letters of
 B
       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,
 C     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. [Para 17][1118-B-D]
 D
              1.5 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.
       Even in the plaint, it is specifically pleaded that after passing
 E     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
 F     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
       Single Judge and the Division Bench rightly refused to reject
       the application in exercise of powers under Order VII Rule 11
 G     CPC. In the facts and circumstances of the case, 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) CPC. The view
       taken by the High Court is concurred with. [Para 18][1118-F-H;
       1119-A-C]
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      SAMEER KAPOOR v. STATE THR. SUB-DIVISION                           1107
           MAGISTRATE SOUTH, NEW DELHI

      Kunvarjeet Singh Khandpur v. Kirandeep Kaur (2008)                 A
      8 SCC 463 : [2008] 5 SCR 1057 – relied on.
      Estate of Late Shri Gurcharan Dass Puri AIR 1987
      P&H 122 ; Ramanand Thakur v. Parmanand Thakur
      AIR 1982 Patna 87 ; Vasudev Daulatram Sadarangani
      v. Sajni Prem Lalwani AIR 1983 Bom. 268 ;                          B
      S. Krishnaswami v. E. Ramiah AIR 1991 Mad. 214 –
      referred to.
                        Case Law Reference
      [2008] 5 SCR 1057          relied on         Para 10, 18
                                                                         C
      AIR 1987 P&H 122          referred to       Para 6.9
      AIR 1982 Patna 87         referred to       Para 6.9
      (2009) 11 SCC 537         relied on         Para 10
      AIR 1983 Bom. 268         referred to       Para 16
                                                                         D
      AIR 1991 Mad. 214         referred to       Para 16


      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10482
of 2013
                                                                         E
      From the Judgment and Order dated 16.01.2009 of the High
Court of Delhi at New Delhi in Appeal bearing No. F.A.O.(OS) 11/2009
      Divyakant Lahoti, Ms. Amrita Grover, Parikshit Ahuja, Ms.
Praveena Bisht, Advs. for the Appellants.
    Shyam D.Nandan, Siddharth Bambher, K. Krishna Kumar, Balraj          F
Dewan, M. A. Krishna Moorthy, Ankit S., Advs. for the Respondents.
      The Judgment of the Court was delivered by
      M. R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the
impugned judgment and order passed by the High Court of Delhi at
New Delhi in F.A.O(OS) No. 11 of 2009, by which a Division Bench of      G
the High Court has dismissed the said appeal and has confirmed the
order passed by the learned Single Judge refusing to reject the plaint
under Order VII Rule 11 of the CPC, the original defendants have
preferred the present appeal.
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1108             SUPREME COURT REPORTS                             [2019] 6 S.C.R.


 A             2. The brief facts leading to this appeal are, that one Smt. Kailash
       Kapoor, a permanent resident of England, executed a will dated
       16.05.1990 bequeathing thereunder all her assets to two of her grand-
       children. That the said Smt. Kailash Kapoor died in England on 10.09.2001.
       According to the appellants, they acted upon the said will and disposed
       of all the immovable properties of the aforesaid testatrix, possessed in
 B
       India between 6.9.2000 to March, 2001. That after the death of late
       Smt. Kailash Kapoor, the High Court of Justice, District Probate Registry
       of Birmingham, England and Wales issued a probate in respect of the
       said will vide order dated 21.11.1997. It appears that thereafter in the
       year 2001, respondent no.2 herein, at whose instance the will was
 C     probated in England, applied for letters of administration for property
       situated in Delhi by filing a Testamentary Case under Section 228 of the
       Indian Succession Act (hereinafter referred to as the ‘Act’) being
       Testamentary Case No. 15 of 2001.
               2.1 That the appellant herein filed I.A. No. 13895 of 2006 before
 D     the learned Single Judge of the High Court, praying to reject the plaint
       under Order VII Rule 11 of the CPC on the ground that the said
       Testamentary Case under Section 228 of the Act, considering Article
       137 of the Limitation Act, 1963, is barred by the law of limitation. It was
       the case on behalf of the appellants that though no limitation would apply
       seeking grant of probate so long as a person has not approached the
 E     court and will is probated, however, once the court at England and Wales
       had been approached and a probate had been granted, no petition for
       letters of administration could have been filed after a lapse of a period of
       three years. The said application was opposed by respondent no.2 herein
       – the original applicant. It was submitted that Article 137 of the Limitation
 F     Act would not apply.
              3. The learned Single Judge vide order dated 24.09.2008 dismissed
       the said application and refused to reject the plaint under Order VII
       Rule 11 of the CPC by observing that Section 228 of the Act is akin to
       provisions of Section 222 and 276 of the Act and, therefore, when there
 G     is no period of limitation prescribed for submitting an application under
       Section 222 and/or Section 276 of the Act, for submitting an application
       under Section 228 of the Act, the period of limitation shall not be applicable.
       Therefore, the learned Single Judge was of the opinion that Article 137
       of the Limitation Act shall have no application.

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      SAMEER KAPOOR v. STATE THR. SUB-DIVISION                                  1109
      MAGISTRATE SOUTH, NEW DELHI [M. R. SHAH, J.]

      4. Feeling aggrieved and dissatisfied with the order passed by the        A
learned Single Judge rejecting the application to reject the plaint under
Order VII Rule 11 of the CPC, the appellants herein approached the
Division Bench of the High Court by way of F.A.O(OS) No. 11 of 2009.
By the impugned judgment and order, the Division Bench of the High
Court has dismissed the said appeal and has confirmed the order passed
                                                                                B
by the learned Single Judge rejecting the application under Order VII
Rule 11 of the CPC.
      5. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the Division Bench of the High Court, the appellants
– applicants- original defendants have preferred the present appeal.
                                                                                C
      6. Mr. Divyakant Lahoti, learned Advocate has appeared for the
appellants and Mr. M.A. Krishna Moorthy, learned Advocate has
appeared for respondent no.2.
      6.1 Mr. Divyakant Lahoti, learned Advocate appearing on behalf
of the appellants has vehemently submitted that in the facts and                D
circumstances of the case, both the Division Bench as well as the learned
Single Judge have materially erred in not rejecting the plaint under Order
VII Rule 11 of the CPC.
       6.2 It is vehemently submitted by the learned Advocate appearing
on behalf of the appellants that Article 137 of the Limitation Act applies      E
to any petition or application filed under any Act before a Civil Court. It
is submitted that it is not confined to applications contemplated by or
under the Code of Civil Procedure. It is submitted that therefore, Article
137 of the Limitation Act shall be applicable to the petitions under the
provisions of the Indian Succession Act also.
                                                                                F
        6.3 It is vehemently submitted by the learned Advocate appearing
on behalf of the appellants that till the will is un-probated, right to apply
for probate is a continuous cause of action, therefore, Article 137 of the
Limitation Act shall not be applicable on petitions for grant of probate
and letters of administration of a will, filed under Section 276 of the Act.
It is submitted that, however, once the will is probated, Article 137 of the    G
Limitation Act will apply to any right which arises on account of probate
of will. It is submitted that in such a case the right accrues on the date
of grant of probate, and therefore, the period of limitation will commence
from such date. In support of the above submissions, learned Advocate
                                                                                H
1110             SUPREME COURT REPORTS                            [2019] 6 S.C.R.


 A     appearing on behalf of the appellants has heavily relied upon the decision
       of this Court in the case of Kunvarjeet Singh Khandpur v. Kirandeep
       Kaur, reported in (2008) 8 SCC 463 (Paragraphs 15 & 16).
              6.4 It is submitted by the learned Advocate appearing on behalf
       of the appellants that in the present case respondent no.2 had applied for
 B     grant of probate of will dated 16.05.1990, executed by late Smt. Kailash
       Kapoor, before the High Court of Justice, District Probate Registry,
       Birmingham (UK), which was granted by the High Court vide order
       dated 21.11.1997. It is submitted that therefore, the right to apply under
       Section 228 of the Act can be said to have accrued in favour of respondent
       no.2 on 21.11.1997. It is submitted that whereas respondent no.2 had
 C     preferred an application for grant of letters of administration of the
       aforesaid will dated 16.05.1990 under Section 228 of the Act, by a Probate
       Case No. 15/2001, after a lapse of period of three years as prescribed
       under Article 137 of the Limitation Act, i.e., on 28.02.2001. It is submitted
       therefore the application submitted by respondent no.2 under Section
 D     228 of the Act is clearly barred by law of limitation and therefore the
       same is liable to be rejected considering Order VII Rule 11(d) of the
       CPC – the applicant’s application being barred by limitation.
               6.5 It is further submitted by the learned Advocate appearing on
       behalf of the appellants that the learned Single Judge has materially
 E     erred in observing that Section 228 of the Act is akin to provisions of
       Sections 222 and 276 of the Act. It is submitted that while coming to the
       aforesaid conclusion, the learned Single Judge has not property construed
       and/or considered the language of the two provisions, i.e., Section 228
       and Section 276 of the Act. It is submitted that Sections 228 and 276 of
       the Act are totally different and operate under different circumstances.
 F     It is submitted that an application under Section 228 of the Act would be
       maintainable only in a case where a will has been proved/probated and
       deposited in a court of competent jurisdiction. It is submitted that therefore
       a valid application under Section 228 has to be necessarily filed on the
       basis of a will that has already been proved, authenticated and probated
 G     by a competent court in foreign jurisdiction. It is submitted that no such
       pre-condition or pre-requisite has been prescribed under Section 276 of
       the Act. It is submitted that unlike Section 228 of the Act, an application
       under Section 276 of the Act is to be filed on the basis of a will which is
       un-probated and is being produced before the court for the first time.

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      SAMEER KAPOOR v. STATE THR. SUB-DIVISION                                    1111
      MAGISTRATE SOUTH, NEW DELHI [M. R. SHAH, J.]

        6.6 It is further submitted by the learned Advocate appearing on          A
behalf of the appellants that even the learned Single Judge has also
materially erred in observing that the object and purpose of the two
provisions is same, i.e., “to seek recognition in respect of will in question”.
It is submitted that language of Section 228 of the Act makes it clear
that a will in respect of which letters of administration is sought to be
                                                                                  B
granted under that Section is an already recognized, proved or
authenticated will, unless rebutted. It is submitted that whereas the will
in question in an application under Section 276 of the Act is an un-
recognised will which is being produced before the court for the first
time and which is yet to be proved.
       6.7 It is further submitted by the learned Advocate appearing on           C
behalf of the appellants that even the scope of enquiry under Sections
228 and 276 of the Act is distinguishable and different. It is submitted
that will under Section 276 of the Act is unauthenticated and yet to be
proved. It is submitted that however the will under Section 228 of the
Act is already proved and authenticated before a foreign court or a               D
competent court mentioned in Section 228 of the Act. It is submitted
that therefore the scope of enquiry under Section 228 of the Act is a
limited exercise.
       6.8 It is further submitted by the learned Advocate appearing on
behalf of the appellants that the Division Bench of the High Court has            E
erred in its reasoning that Probate Case No. 15/2001 is not barred by
limitation because it is the first Probate Petition filed in India, as the
earlier Probate proceedings were in the Court of England and Wales. It
is submitted that the Division Bench has materially erred in not properly
appreciating the fact that the administration of an estate in probate is an
in rem proceedings. It is submitted therefore the law of limitation is            F
applicable even if the previous probate proceedings were initiated in a
foreign jurisdiction as the same are in rem. It is submitted that therefore,
both the learned Single Judge as well as the Division Bench have
materially erred in dismissing the application filed by the appellants herein
under Order VII Rule 11 of the CPC.                                               G
      6.9 In support of his above submissions, learned Advocate
appearing for the appellants has heavily relied upon the decision of the
Punjab and Haryana High Court in the case of Estate of Late Shri
Gurcharan Dass Puri, reported in AIR 1987 P&H 122, as well as,
                                                                                  H
1112             SUPREME COURT REPORTS                             [2019] 6 S.C.R.


 A     the decision of the Patna High Court in the case of Ramanand Thakur
       v. Parmanand Thakur, reported in AIR 1982 Patna 87.
             6.10 Making the above submissions and relying upon the aforesaid
       decisions of this Court, Punjab & Haryana High Court and Patna High
       Court, it is prayed to allow the present appeal and quash and set aside
 B     the orders passed by the learned Single Judge and the Division Bench
       and consequently reject the plaint under Order VII Rule 11(d) of the
       CPC.
              7. The present appeal is vehemently opposed by the learned
       Advocate appearing on behalf of respondent no.2. It is vehemently
 C     submitted by the learned Advocate that in the facts and circumstances
       of the case, both the learned Single Judge and the Division Bench of the
       High Court have rightly held that an application under Section 228 of the
       Act would not be barred by limitation, inasmuch as Article 137 of the
       Limitation Act would not be applicable.
 D            7.1 It is vehemently submitted by the learned Advocate appearing
       on behalf of respondent no.2 that the decision of this Court in the case of
       Kunvarjeet Singh Khandpur (supra) shall not be applicable to the
       facts of the case on hand, as before this Court the petition was under
       Section 218/278 of the Act, however, in the present case, the petition is
       under Section 228/276 of the Act.
 E
               7.2 It is further submitted by the learned Advocate appearing on
       behalf of respondent no.2 that in the present case as such the probate
       proceedings before the court in England was never objected and there
       was no objection to the grant of probate. It is submitted that, in fact, the
       father of the appellants and respondent no.2 had given ‘No Objection’ to
 F     the said probate. It is submitted that in law, respondent no.2 is not obligated
       to apply for letters of administration in Delhi. It is submitted that in the
       case where the probate is not objected to, respondent no.2 had no reason
       to seek the same as well. It is submitted that therefore ‘right to apply’
       under Article 137 of the Limitation Act, if any, never accrued against
 G     respondent no.2. It is submitted that both the learned Single Judge as
       well as the Division Bench have rightly dismissed the application under
       Order VII Rule 11(d) of the CPC and have rightly refused to reject the
       plaint.


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     SAMEER KAPOOR v. STATE THR. SUB-DIVISION                                  1113
     MAGISTRATE SOUTH, NEW DELHI [M. R. SHAH, J.]

      7.3 Making the above submissions, it is prayed to dismiss the            A
present appeal.
       8. We have heard the learned counsel for the respective parties
at length.
      9. Two questions arise for consideration before this Court in the
present appeal:                                                                B

      i) Whether Article 137 of the Limitation Act shall be applicable
for application for grant of probate or letters of administration?;
       ii) Whether the application under Section 228 of the Indian
Succession Act shall be barred by the period of limitation prescribed          C
under Article 137 of the Limitation Act, and whether the period of
limitation for application under Section 228 of the Act would start to run
from the date of grant of probate by a court of competent jurisdiction
situated beyond the limits of the State, whether within or beyond the
limits of India?
                                                                               D
       10. Now so far as the first question is concerned, the same is now
not res integra in view of the direct decision of this Court in the case of
Kunvarjeet Singh Khandpur (supra) and in the case of Krishan
Kumar Sharma v. Rajesh Kumar Sharma reported in (2009) 11 SCC
537. In both the aforesaid decisions, this Court has specifically observed
and held that Article 137 of the Limitation Act shall be applicable to the     E
petitions for grant of probate or letters of administration also. Therefore,
question no.1 is answered in the affirmative and it is observed and held
that Article 137 of the Limitation Act, 1963 shall be applicable to the
applications for grant of probate or letters of administration.
       11. Now so far as question no.2 is concerned, it is the specific        F
case on behalf of the appellants that the application submitted by
respondent No.2 for letters of administration under Section 228 of the
Act is barred by the law of limitation as provided under Article 137 of
the Limitation Act. As observed and held hereinabove, Article 137 of the
Limitation Act shall be applicable to the application for grant of probate
                                                                               G
or letters of administration submitted under Section 276 of the Act.
Similarly, even the application under Section 228 of the Act shall also be
covered by Article 137 of the Limitation Act. Therefore, it is observed
and held that Article 137 of the Limitation Act shall be applicable to the
applications under Section 228 of the Act also.
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1114             SUPREME COURT REPORTS                               [2019] 6 S.C.R.


 A           12. However, the next question which is posed for consideration
       before this Court is, when the ‘right to apply’ can be said to have
       accrued?
               12.1 As per Article 137 of the Limitation Act, the period of limitation
       prescribed is three years and the three years begin to run when the
 B     ‘right to apply’ accrues. The crucial expression under Article 137 of the
       Limitation Act is ‘right to apply’. It is the case on behalf of the appellants
       that in the present case the ‘right to apply’ for letters of administration
       had accrued in the year 1997, more particularly on 21.11.1997 when the
       High Court of Justice, District Probate Registry, Birmingham (UK) passed
       an order for grant of probate of will dated 16.05.1990 in favour of
 C     respondent no.2. It is the case on behalf of the appellants that therefore
       ‘right to apply’ under Section 228 of the Act had accrued in favour of
       respondent no.2 on 21.11.1997 and, therefore, respondent no.2 was
       required to submit an application for letters of administration within a
       period of three years from 21.11.1997. However, the application for
 D     letters of administration has been submitted on 28.02.2001, i.e., after a
       lapse of limitation of three years as prescribed under Article 137 of the
       Limitation Act and therefore Probate Case No. 15/2001 is clearly barred
       by law of limitation and, therefore, the same was required to be rejected
       in exercise of powers under Order VII Rule 11 of the CPC. It is also
       the case on behalf of the appellants that so long as the will is not probated,
 E     the period of limitation would not start running. However, once the will
       is probated, in that case, the period of limitation as provided under Article
       137 of the Limitation Act would begin to run from the date on which the
       will is probated.
              13. We have heard the learned counsel for the respective parties.
 F
              14. At the outset, it is required to be noted that the relevant provisions
       for grant of probate or letters of administration with the will would be
       Section 276 of the Act. Section 276 of the Act reads as under:
              “276.Petition for probate – (1) Application for probate or for
 G            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—
 H
      SAMEER KAPOOR v. STATE THR. SUB-DIVISION                                  1115
      MAGISTRATE SOUTH, NEW DELHI [M. R. SHAH, J.]

      (a) the time of the testator’s death,                                     A
      (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                                                                B
      (e) when the application is for probate, that the petitioner is the
      executor named in the Will.
      (2) In addition to these particulars, the petition shall further
      state –
                                                                                C
      (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
                                                                                D
      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.”                                    E

       14.1 When an application under Section 276 of the Act is submitted
for probate or for letters of administration with will, if any objection is
raised by any body with respect to execution of the will, in that case, the
applicant is required to prove the will and thereafter the will shall be
probated and the court may pass an order for letters of administration.         F
However, in a case where a will has been proved or deposited in a court
of competent jurisdiction situated beyond the limits of the State, whether
within or beyond the limits of India, in that case, as provided under Section
228 of the Act, when a properly authenticated copy of the will is produced,
the letters of administration may be granted in favour of such person.          G
Meaning thereby, in such a situation, the will is not required to be proved
again and it shall be conclusive. Therefore, Section 228 of the Act shall
be an enabling provision and it confers an additional right to apply for
letters of administration on the basis of such authenticated copy of the

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1116            SUPREME COURT REPORTS                            [2019] 6 S.C.R.


 A     will. Therefore, as rightly observed by the learned Single Judge and the
       Division Bench that Section 228 is akin to Section 276 of the Act.
             15. Now the next question which may arise for consideration would
       be, whether for an application for probate or letters of administration
       with will, the period of limitation would begin to run from which date?
 B            16. While considering the issue involved, the decision of this Court
       in the case of Kunvarjeet Singh Khandpur(supra) is required to be
       referred to and considered. In the said decision, this Court considered
       the decision of the Bombay High Court in the case of Vasudev
       Daulatram Sadarangani v. Sajni Prem Lalwani reported in AIR 1983
 C     Bom. 268, as well as, the decision of the Madras High Court in the case
       of S. Krishnaswami v. E. Ramiah, reported in AIR 1991 Mad. 214.
       In the said decision, this Court referred to and considered paragraph 17
       of the decision of the Madras High Court in the case of S.
       Krishnaswami(supra), which reads as under:
 D           “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 letters of administration
             issued by a competent court is conclusive proof of the legal
             character throughout the world. An assessment of the relevant
 E           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
 F           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
 G           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
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      SAMEER KAPOOR v. STATE THR. SUB-DIVISION                                   1117
      MAGISTRATE SOUTH, NEW DELHI [M. R. SHAH, J.]

       applications coming within the meaning of an ‘application’ under          A
       Article 137 if the Limitation Act, 1963.”
       16.1 This Court approved the observations made in paragraph 17
by the Madras High Court in the case of S. Krishnaswami (supra)
insofar as the nature of the petition for grant of probate or letter of
administration is concerned. However, this Court did not agree with the          B
finding that the application for grant of probate or letters of administration
is not covered by Article 137 of the Limitation Act.
       16.2 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                   C
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        D
       or succession certificate must be made;
       (b) The assumption that under Article 137 the right to apply nec-
       essarily accrues on the date of the death of the deceased, is un-
       warranted;
                                                                                 E
       (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;                                       F
       (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;          G

       (f) Such delay must be explained, but cannot be equated with the
       absolute bar of limitation; and


                                                                                 H
1118             SUPREME COURT REPORTS                             [2019] 6 S.C.R.


 A            (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
 B     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
 C     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
 D     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
 E     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
 F     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
 G     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,

 H
      SAMEER KAPOOR v. STATE THR. SUB-DIVISION                                   1119
      MAGISTRATE SOUTH, NEW DELHI [M. R. SHAH, J.]

the cause of action started from the date on which the appellants started        A
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
                                                                                 B
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.
       19. In view of the above and for the reasons stated above, the            C
present appeal fails and the same deserves to be dismissed and is
accordingly dismissed. However, in the facts and circumstances of the
case, there shall be no order as to costs.

                                                                                 D
Nidhi Jain                                                   Appeal dismissed.




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