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2008 DIGILAW 792 (DEL)

RAM CHANDER TALWAR v. DEVENDER KUMAR TALWAR

2008-08-20

REKHA SHARMA

body2008
JUDGMENT Rekha Sharma, J. (Oral)- The appellant is one of the two sons of late Smt. Vidyawati Talwar and Shri Ganda Ram Talwar. He filed a petition under Section 278 of the Indian Successions Act in the Court of the District Judge seeking Letters of Administration in respect of the estate of his late parents as detailed in Annexure I to the petition. Prior to him, his brother Devender Kumar Talwar had filed a similar petition seeking Letters of Administration but it was in respect of part of the estate of his deceased parents. The petition filed by Devender Kumar Talwar was allowed and he was granted Letters of Administration as prayed by him. The appellant who was respondent in that petition preferred an appeal against that order which was dismissed upon which he filed a Special Leave Petition in the Supreme Court which is pending consideration. 2. Insofar as the petition of the present appellant before the District Judge praying for Letters of Administration in respect of the property mentioned in his petition was concerned, the same was dismissed on the ground that it was barred by time. The learned Additional District Judge who decided the petition relied upon a Single Judge Bench judgment of this Court reported in Pamela Manmohan Singh v. State & Ors., 2000 RLR 137 wherein it was held that the limitation for seeking Letters of Administration is governed by Article 137 of the Limitation Act, 1963 which provides that "any other application for which no period of limitation is provided elsewhere in this Division is three years when the right to apply accrues". It was thus held that since Smt. Vidyawati Talwar died on December 29, 1998 and as the appellant had filed the petition seeking Letters of Administration on November 27, 2002, the same was barred by time. The appellant came in appeal against the said order which also was dismissed. The appellant then preferred a special leave petition to the Supreme Court. The Apex Court on February 13, 2006 disposed of the special leave petition stating therein that the judgment relied upon by the Additional District Judge and also by the Single Judge of the High Court stood overruled by a judgment of the Division Bench in the case of S.S. Lal v. Vishnu Mitter Govil, 112(2004) Delhi Law Times 877 (DB). The Apex Court on February 13, 2006 disposed of the special leave petition stating therein that the judgment relied upon by the Additional District Judge and also by the Single Judge of the High Court stood overruled by a judgment of the Division Bench in the case of S.S. Lal v. Vishnu Mitter Govil, 112(2004) Delhi Law Times 877 (DB). While disposing of the special leave petition, the Apex Court remitted the case back to this Court for a fresh decision in accordance with law. This is how the present appeal has come up for fresh consideration by this Court. 3. I have perused the judgment of this Court passed in the case of S.S. Lal v. Vishnu Mitter Govil (supra). It has been held in the said judgment that no limitation applies to an application for grant of Probate or Letters of Administration but it would apply in cases where revocation of Letters of Administration is sought and in that case Article 137 of the Limitation Act shall come into play. 4. The learned Counsel for the respondent does not dispute that the Division Bench of this Court has held that no limitation would apply in cases where Letters of Administration or Probate is sought but submits that insofar as the petition for Letters of Administration filed by the appellant herein is concerned, it was in the nature of revocation and not for Letters of Administration. This submission is made on the basis that in the petition which the respondent had filed for Letters of Administration, the appellant was served on August 10, 1999 and it was after having gained knowledge of the said petition that he filed an independent petition for Letters of Administration but did so much after the expiry of three years. 5. As against this, it is submitted by learned Counsel for the appellant that whereas the respondent herein had filed for Letters of Administration only to the extent of 1/3rd share in the bank account, he had sought Letters of Administration for the entire estate of his deceased parents and in any case he had filed his petition during the pendency of the probate petition filed by the respondent and as such there was no occasion of his seeking revocation of Letters of Administration. I see much merit in the submission of learned Counsel for the appellant. I see much merit in the submission of learned Counsel for the appellant. The question of revocation would have arisen only if the respondent was granted Letters of Administration before the appellant had filed his petition. But that was not the case. That happened after the appellant had filed his separate petition seeking Letters of Administration in respect of the entire estate of his deceased parents. In this view of the matter, the submission of learned Counsel for the respondent that the petition filed by the appellant was in the nature of revocation of Letters of Administration granted to the respondent is misconceived. The same is rejected. The case of the appellant is fully covered by the judgment in S.S. Lal v. Vishnu Mitter Govil (supra) and in view of the same, the petition filed by the appellant could not have been held to be barred by limitation. The order of the Additional District Judge dated October 31, 2003 is set aside. The case is remanded back to the Court of Additional District Judge for decision on merits. The parties shall appear before the District Judge on September 10, 2008. 5. With these directions, the appeal is disposed of. Appeal disposed of.