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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1399 OF 2010

RAMESH NIVRUTTI BHAGWAT ...APPELLANT

VS.

DR. SURENDRA MANOHAR PARAKHE ...RESPONDENT

J U D G M E N T

S. RAVINDRA BHAT, J.

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”).

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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

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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(notice of  motion) was allowed to be withdrawn, with  liberty to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

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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

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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.

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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

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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.

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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.

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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

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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.

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(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.

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(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                        

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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

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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  two­ judge 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

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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

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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

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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 un­ challenged 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

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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.