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2010 DIGILAW 504 (GAU)

Kamakhya Prasad Gupta v. Jibon Lal Gupta

2010-07-28

I.A.ANSARI

body2010
ORDER I.A. Ansari, J. 1. This is an appeal against the order, dated 30.11.2002, passed by the learned Additional District Judge, Nagaon, in Title Suit No. 9(N) of 1997, allowing the Respondent’s application for probate. 2. I have heard Mr. S.K. Barkataki, learned Counsel for the Appellants and Mr. N. Choudhury, learned Counsel, appearing on behalf of the Respondent. 3. The material facts, giving rise to the appeal, may, in brief, be set out as under: The Respondent herein made an application, under Section 266 of the Indian Succession Act, 1925, seeking probate in respect of a Will, which, according to the applicant-Respondent, was the last Will and testament of his grand-father, Deosaran Ram, leaving behind the applicant-Respondent and some others as his heirs and successors, the applicant-Respondent 's case being, in brief, thus: The writing, annexed to the application for probate, is the last Will and testament of Deosaran Ram, who died, on 16.5.1984, at Behca, District Bhojpur, in the State of Bihar, Lumding, in the district of Nagaon, Assam, being his permanent place of abode at the time of his death. The Will, so executed, was duly attested by witnesses, the applicant-Respondent having been appointed as the executor under the said Will, which was registered with the Office of the Sub-Registrar, Nagaon. The registered Will, in original, was submitted, in a land ceiling case, by the applicant's counsel, namely, Jagat Bandhu Das (since deceased). However, the Will was misplaced and the applicant failed to trace out the Will even after vigorous search at the chamber of the advocate and also in the land ceiling case. The certified copy of the Will has, therefore, been obtained on 12.6.1996 and the accused-Respondent, having been appointed under the said Will, as the executors, needs to be granted probate. 4. The Appellants herein, who appeared as opposite party in the probate proceeding, filed their objections to the applicant's prayer for granting him probate, their objection being, briefly stated, that the application for probate is untenable in law in its present form, there is no valid, ground for application for probate, the application suffers from non-joinder and mis-joinder of parties and that the application also suffers from waiver, estoppel and acquiescence. The Appellants, while opposing the application for probate, contended that the testator never executed or registered the alleged Will nor was there any reason for him to do so. The Appellants, while opposing the application for probate, contended that the testator never executed or registered the alleged Will nor was there any reason for him to do so. The Will, which the applicant was seeking probate of, was a fraudulent, collusive and manufactured document. The testator had no reason or intention to deprive his other heirs of their rightful inheritance in the properties of the testator. Late Deosaran Ram Shah married three wives, namely, Sumindra Devi (since deceased), Dularia Devi (since deceased) and Smt. Maya Devi. From Sumindra Devi, Dewsaran Ram got one son, namely, Munilal and four daughters, namely, Bhogmoni Devi (since deceased), Santi Devi, Sulochana Devi and Geeta Devi. Bhogmoni Devi died leaving Kamakhya Prasad Gupta and Sital Prasad Gupta as sons and Nirmala Devi, Uma Devi, Munu and Krishna Devi as daughters. Through the testator's second wife, namely, Dularia Devi, the Testator, Dewsaran Ram, got two sons, namely, Gopilal Gupta and Motilal Gupta and a daughter, Tulawati. On the death of the said deceased, all his properties, including the properties covered by the purported Will of the said deceased, devolved on his heirs and the heirs have had been in possession and enjoyment of their respective shares in the properties left by the said deceased. The names of the heirs have accordingly been mutated as per their respective shares in the said properties within the knowledge of the heirs of Motilal Gupta, whose one of the sons, namely, Jibanlal, is the applicant. Neither Jibanlal Gupta nor his brother, Dhirajlal Gupta (who is one of the sons of Motilal Gupta), ever asserted, in the mutation proceedings, that the said deceased had left a registered Will with the present applicant as executor of the said Will. In fact, Dhirajlal Gupta, brother of the present applicant, Jibanlal Gupta, has preferred an appeal against the order granting mutation, but, at no stage, it has been contended therein that the said deceased had left a registered Will. The said Will is a fraudulent and collusive document, which has been manufactured by Jibanlal Gupta, i.e., the brother of Dhirajlal Gupta, Sundarlal Gupta and Chotalal Gupta in collusion with their father, Motilal Gupta, and others. The said Will is a fraudulent and collusive document, which has been manufactured by Jibanlal Gupta, i.e., the brother of Dhirajlal Gupta, Sundarlal Gupta and Chotalal Gupta in collusion with their father, Motilal Gupta, and others. The said deceased had very cordial relation with all his other heirs including the opposite party, (i.e., the Appellants herein) and there was no question of his depriving them of the enjoyment of their respective shares in the properties. 5. As the application for probate had been resisted by filing objection by the present Appellants, the learned court below, taking the said proceeding as a contentious proceeding, got the same registered as a 'suit', wherein following four issues were framed: (i) Whether the testator executed any Will? (ii) Whether the Will was duly executed? (iii) Whether the Will is fraudulent, collusive, manufactured and doubtful? and (iv) Relief? 6. In support of their respective cases, both the parties adduced evidence, the applicant, as Plaintiff, having examined four witnesses, whereas the Defendant examined six witnesses. The Will was proved as Ext. 1. The learned court below, having concluded that the said Will, proved as Exhibit 1, was left by the deceased as his last Will and testament, held that the applicant, (i.e., the Respondent herein) was entitled to the grant of probate and accordingly passed order directing issuance of probate on payment of requisite court-fees. Aggrieved by the order aforementioned, this appeal has been preferred by the opposite party. 7. Referring to Ext. 1, Mr. Barkataki, learned Counsel for the Appellants, has pointed out that Dewsaran Ram died as far back as on 16.5.1984, but the application for probate was made as late as on 23.8.1996, (i.e., about after 12 years) and during the said period of 12 years, there was no whisper, at any stage, that a Will had been left by the said deceased. Mr. Barkataki has also pointed out that even in the mutation proceeding, which was contested by the applicant-Respondent’s family, it had, nowhere, been asserted that the testator had left a Will. This apart, even in the appeal, which has been preferred by the applicant-Respondent 's brother, namely, Dhirajlal Gupta, against the order passed in the mutation proceeding, there is no assertion at all that the said deceased had left the Will with the present-Respondent as executor of the Will. Mr. This apart, even in the appeal, which has been preferred by the applicant-Respondent 's brother, namely, Dhirajlal Gupta, against the order passed in the mutation proceeding, there is no assertion at all that the said deceased had left the Will with the present-Respondent as executor of the Will. Mr. Barkataki further points out that after a long lapse of 12 years from the date of the death of the said deceased, the applicant-Respondent has, suddenly, come out with the claim that the said deceased had left a Will, which had been registered on 15.11.1967. There was, according to Mr. Barkataki, no reason for the said deceased to deprive his other heirs from inheriting their lawful shares in the properties of the said deceased. The entire claim of execution of the Will, contends Mr. Barkataki, remains engulfed in suspicious circumstances and the learned court below ought not to have, in such circumstances, allowed the application for probate. 8. While resisting the present appeal, Mr. Choudhury, learned Counsel appearing on behalf of the applicant-Respondent, submits, that the execution of the Will has been proved by producing a certified copy of the Will and also by bringing an official from the office of the Registrar at Nagaon, who has proved that in the name of one Deosaran Ram, a Will, as claimed by the applicant, does stand registered. In fact, in this regard, it is noteworthy, points out Mr. Choudhury, that one Rudrakanta Bora, an employee of Sub-Registrar Office, has deposed that in volume Nos. 50, 51 and 52, there is a mention of the fact that the testator of Will No. 17 of 1967 was Dewsaran Ram. The execution of the Will has also been proved, points out Mr. Choudhury, by examining one of the attesting witnesses, namely, Jagat Ch. Sharma and also one D. Hazarika, who used to serve in Nagaon Sub-Registry Office and knew Dewsaran Ram. 9. While considering the present appeal, what is of paramount importance to note is that the Will, which forms the subject-matter of controversy in the probate proceeding, was, according to the applicant-Respondent, registered as far back as on 15.11.1967 and the testator died on 16.5.1984. Surprisingly, however, the application for probate was made as late as on 23.8.1996. 10. 9. While considering the present appeal, what is of paramount importance to note is that the Will, which forms the subject-matter of controversy in the probate proceeding, was, according to the applicant-Respondent, registered as far back as on 15.11.1967 and the testator died on 16.5.1984. Surprisingly, however, the application for probate was made as late as on 23.8.1996. 10. Thus, apart from the question that the applicant-Respondent had the responsibility of satisfying the court that the belated attempt made for seeking probate was bona fide and the Will, in question, was the last Will and testament of the testator, what is necessary to note is that the application for probate having been made after almost about 12 years of the death of the testator and no application for condonation of delay accompanying the said application for probate, having been made, whether the application for probate could have been entertained at all? 11. The questions, therefore, which arise for determination, in the present appeal, are: (i) Whether there is any prescribed period of limitation for making an application for probate? (ii) When an application for probate is made after more than 12 years of the death of the person, who is claimed to have executed a Will, whether such an application needs to be accompanied by an application for condonation of delay? and (iii) In the absence of any such an application for condonation of delay, whether the application for probate can at all be allowed? 12. The questions, posed above, bring me to Article 137 of the Limitation Act, 1963. Article 137 of the Limitation Act, which is included in Part-II under the heading 'Other Applications', reads as under: Description of suit Period of limitation Time from which period begins to run 137. Any other application for which no period of limitation is provided elsewhere in this Division. Three years When the right to apply accrues. 13. From a bare reading of the provisions contained in Article 137, what clearly transpires is that the period of limitation, for making an application for which no period of limitation is provided elsewhere in the Limitation Act, is three years from the date, when the right to apply accrues. The question, therefore, is: whether Article 137 applies to an application for probate? 14. The question, therefore, is: whether Article 137 applies to an application for probate? 14. In respect of the scope of Article 137, a two Judge Bench of the Supreme Court, in Town Municipal Council, Athani v. Presiding Officer (1969) 1 SCC 873 , had taken the view that Article 137 applies to only such applications, which are contemplated by or under the Code of Civil Procedure. The decision, so rendered, has been overruled by a three-Judge Bench in Kerala State Electricity Board v. T.P. Kunhaliumma (1976) 4 SCC 634 , wherein the Supreme Court has held that Article 137 applies to all such petitions or applications, which may be filed under any enactment to a civil court if no period of limitation for such a petition or application is, otherwise, prescribed. The relevant observations, made, in this regard, in Kerala State Electricity Board (supra), read as under: 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 (supra) and hold that Article 137 of the 1963 Limitation Act is not confined, to applications contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a court. The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application failing within the scope of Article 137 of the 1963 Limitation Act. (emphasis supplied) 15. The above decision, in Kerala State Electricity Board (supra), has been followed in Kunvarjeet Singh Khandpur v. Kirandeep Kaur and Ors. (2008) 8 SCC 463 and in Krishan Kumar Sharma v. Rajesh Kumar Sharma (2009) 11 SCC 537 , wherein applications, seeking probate were made. 16. It, now, needs to be pointed out that in an application for probate or letter of administration, no right is asserted or claimed by the applicant, who applies for probate. The applicant, in such a case, only seeks recognition of the court to perform a duty, which the Will may have imposed on him. Nevertheless, probate or letter of administration, issued by a competent court, is conclusive proof of the legal character throughout the world. The applicant, in such a case, only seeks recognition of the court to perform a duty, which the Will may have imposed on him. Nevertheless, probate or letter of administration, issued by a competent court, is conclusive proof of the legal character throughout the world. By his Will, the testator casts a duty on an executor as regards the administration of his estate and by an application for probate or letter of administration, the administrator merely seeks permission of the court to perform the duty so cast on him by the testator. Thus, in an application for probate or letter of administration, what the applicant seeks is recognition from a court of his status as an executor of the Will to perform the duty cast by or under the Will. This duty is moral and not legal. No law compels the applicant to file application for probate or letter of administration. It is with a view to discharge his moral obligation that a person applies for probate seeking recognition from the court of his status as executor of the Will. A reference, in this regard, may be made to the case of S. Krishnaswami v. E. Ramiah AIR 1991 Mad. 214 , wherein Madras High Court observed as follows: 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 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 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. 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 applicant seeks recognition from the court to perform the duly. 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 applications coming within the meaning of an 'application' under Article 137 of the Limitation Act, 1963. 17. A Division Bench of the Delhi High Court agreed with the above position of law. However, the Supreme Court has pointed out, in Kunvarjeet Singh Khandpur (supra), that while the nature of proceeding has been correctly described in S. Krishnaswami (supra), the observations, made therein, that an application, seeking grant of probate or letter of administration, is not covered by the Article 137 of the Limitation Act, is, in the light of the law, laid down in Kerala State Electricity Board (supra), not a correct proposition of law. 18. In the face of what has been laid down in Kerala State Electricity Board (supra) and followed in Kunvarjeet Khandpur (supra) and Krishan Kumar Sharma (supra), there can be no escape from the conclusion that an application for probate shall also be made, under the Limitation Act, 1963, within a period of 3 years from the date, when the right to apply accrues. 19. The question, therefore, is: When does the right to apply for probate or letter of administration arise? 20. In Rajan v. State of Kerala AIR 1992 SC 1918 , the Supreme Court observed, "the right to apply accrues, when the difference arises or differences arise, as the case may be, between the parties. It is, thus, a question of fact to be determined in each case having regard to the facts of that case". 21. From the observations made above in Rajan (supra), it is clear that the question, as to when the right to apply accrues, is a question of fact. It is, thus, a question of fact to be determined in each case having regard to the facts of that case". 21. From the observations made above in Rajan (supra), it is clear that the question, as to when the right to apply accrues, is a question of fact. In Balwant Singh v. Surbachan Singh (1993) 1 SCC 442 , the Supreme Court, referring to Article 137, has observed, thus, "The period of limitation under Article 137 is three years, which commences from the date, when the right to apply accrues. The question, when such right to apply accrues, will depend on the facts and circumstances of each case". 22. The decision, in Balwant Singh (supra), shows that the answer to the question, as to when the right to apply accrues, depends on the facts of a given case. 23. With regard to the above, it is, now, time to point out that the Bombay High Court, in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani AIR 1983 Bom. 268 , had held at para 16(b) that the assumption that under Article 137, "the right to apply necessarily accrues, on the date of the death of the deceased, is unwarranted and that 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". The relevant observations read: (16) REJECTING Mr. The relevant observations read: (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 or succession certificate, must be made; (b) the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted; (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; (d) the right to the apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceased, death; (e) delay beyond 3 years after the deceased death would arouse suspicion and greater the delay, greater would be the suspicion; (f) such delay must be explained, but cannot be equated with the absolute bar of limitation; and (g) once execution and attestation are proved, suspicion of delay no longer operates. 24. The Supreme Court has, however, held, in Kunvarjeet Khandpur (supra) and Krishan Kumar Sharma (supra), that the conclusion (b), reached in Vasudev Daulatram Sadarangani (supra), is not correct, while the conclusion (c) is correct, meaning thereby that while it is true that with the help of an application for probate or letter of administration, a person merely seeks court's permission to perform a legal duty created by a Will or for recognition as a testamentary trustee and that this right 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 the object of the trust exists or any part of the trust, if created, remains to be executed, but the assumption that under Article 137, the right to apply necessarily accrues on the date of the death of the deceased, is correct. This, in turn, means that the right to apply for probate or letter of order accrues on the date of the death of the testator. This, in turn, means that the right to apply for probate or letter of order accrues on the date of the death of the testator. Consequently, the reasoning, assigned by the Bombay High Court, in Vasudev Daulatram Sadarangani (supra), that right to apply will accrue, when it becomes necessary to apply, which may not become necessary within three years from the date of the testator's death, is not correct, because when Article 137 says that an application has to be made within a period of 3 years from the date, when the right to apply accrues, one has to determine as to when the right to apply has accrued in a given case and not as to when the executor or beneficiary considers it necessary to make the application for probate or letter of administration, as the case may be. 25. Necessarily, therefore, in the light of the decision, in Kunvarjeet Singh Khandpur (supra), right to apply accrues on the date of death of the testator. That is to say, an application for probate shall be made within 3 years from the date of death of the deceased in respect of whose Will, the probate or letter of administration is applied for. If there is any delay, such delay is not only to be satisfactorily explained, but there must also be an application made, under Section 5 of the Limitation Act, seeking condonation of delay, because Section 5 applies not only to appeals, but also applications. Thus, in the absence of any application made, seeking condonation of delay, in terms of Section 5 of the Limitation Act, no application for probate or letter of administration can be entertained by a court if the prescribed period of three years, with effect from the date of death of the testator, expires. 26. What emerges from the above discussion is that though the decision in Rabindra Nath Hazarika2002 (3) GLT 482, lays down that an application for probate or letter of administration is not governed by law of limitation, there can be no escape from the conclusion, in the light of the decision in Kerala State Electricity Board (supra), and reiterated by the Supreme Court in Kunvarjeet Singh Khandpur (supra) and Krishan Kumar Sharma (supra), that Article 137 does apply to such applications. 27. 27. In the case of Saithalavi v. Kerala State Electricity Board (1998) 9 SCC 557 , the Kerala State Electricity Board filed a revision against the order of the trial court on the ground that the trial court had no jurisdiction to entertain the claim under Section 16(3) of the Indian Telegraph Act, 1885, because the award of the authority had been made on 9.8.1983, while the application to the District Court had been made, under Section 16(3) of the said Act, in the year 1993, which was far beyond the prescribed period of limitation of three years. Referring to the decision in Kerala State Electricity Board (supra), the Kerala High Court held that the application was barred by limitation. Although it was contended, in the Supreme Court, in Saithalavi (supra), that the question of limitation had not been raised before the trial court, the Supreme Court took the view that the question of limitation, being a pure question of law, would assume the character of issue of jurisdiction and held that the application was barred by limitation and Section 5 of the Limitation Act applies and an application could have been made, under Section 5 of the Limitation Act, for condonation of delay. This shows that on sufficient cause being shown, an application, filed beyond the period 3 years from the date of death of the testator, can be entertained provided an application under Section 5 of the Limitation Act is made. 28. There is yet another question, which needs to be addressed. 29. Whether a contentious proceeding, within the meaning of Section 295 of the Indian Succession Act, 1925, is a 'suit'? 30. The question, posed above, brings me to Section 295, which reads: 295. Procedure in contentious cases. - In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 (5 of 1908) in which the Petitioner for probate or letters of administration, as the case may be, shall be the Plaintiff, and the person, who has appeared to oppose the grant, shall be the Defendant. 31. Thus, what Section 295 provides is that when there is any contention, the probate proceeding will take, as nearly as may be, the form of a suit. 31. Thus, what Section 295 provides is that when there is any contention, the probate proceeding will take, as nearly as may be, the form of a suit. The key words are "as nearly as may be". 32. This, in turn, brings one to the questions as to what a 'suit' is, what is a 'decree' and how a 'decree' differs from an 'order'. 33. What, now, needs to be noted is that the Code of Civil Procedure does not define what a 'suit' is. Section 26 Code of Civil Procedure merely states that a 'suit' shall be instituted by the presentation of the 'plaint'. 34. Order IV, Rule 1(1), while laying down that every 'suit' shall be instituted by presenting a 'plaint', in duplicate, to the court or such officer as the court appoints. Order IV, Rule 1(2) further lays down that every 'plaint' shall comply with the rules contained in orders VI and VII so far as they are applicable. Order VII, Rule 1 lays down the particulars required to be contained in a 'plaint'. In effect, thus, a 'suit' is instituted by presentation of a plaint unless the law provides otherwise and what a plaint needs to contain is embodied in order VII. 35. In Hansraj v. Dehra Dun-Mussoorie Electric Tramways Co. Ltd. AIR 1933 PC 63, it was observed that suit, ordinarily, means, and apart from the context, must be taken to mean, a civil proceeding instituted by the presentation of a plaint. 36. In the case of Pandurang v. Shantibai AIR 1989 SC 2240 , the Supreme Court has observed that in comprehensive sense, the word 'suit' is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy, which law affords. The modes of the proceedings may be different; but if a right is litigated between the parties in a Court of Justice, the proceeding, by which the decision of the court is sought, may be a suit. 37. Section 33 of the Code of Civil Procedure, which deals with 'judgment' and 'decree', lays down that the court, after the case has been heard, shall pronounce 'judgment' and, on such 'judgment', a 'decree' shall follow. 38. Section 2(9) of the Code of Civil Procedure defines "judgment" to mean the statement, given by the judge, on the grounds of a decree or order. 39. 38. Section 2(9) of the Code of Civil Procedure defines "judgment" to mean the statement, given by the judge, on the grounds of a decree or order. 39. Section 2(14) of the Code of Civil Procedure defines 'order' to mean the formal expression of any decision of a civil court, which is not a 'decree'. 40. What is, then, a 'decree'? Section 2(2) of the Code of Civil Procedure defines a 'decree' to mean a formal expression of an adjudication, which, so far as regards the court expressing it, conclusively determines the right of the parties with regard to all or any of the matter in controversy in the suit, which may be either preliminary or final. It shall deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include - (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. 41. What is, now, important to note is that the Code of Civil Procedure provides for two kinds of appeal. The orders, which are appealed under order XLIII, Rule 1, and Section 96, which provides for appeal against the original decree. 42. When, in a proceeding of probate or letter of administration, contention is raised and it becomes a contentious proceeding within the meaning of Section 295, the proceeding has to be treated as nearly as possible as a 'suit'. Had the expression, 'as nearly as possible' meant that the proceeding, on being contested, shall become a regular 'suit', no specific provision for appeal was required to be made in respect of an order, which is passed on the conclusion of a contentious proceeding. However, when one turns to Section 299 of the Indian Succession Act, 1925, it would transpire that Section 299 makes every order, passed by District Judge, subject to appeal to the High Court. Section 299 reads: 299. Appeals from orders of District Judge. - Every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court, in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to appeals. 43. Section 299 reads: 299. Appeals from orders of District Judge. - Every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court, in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to appeals. 43. Thus, had the contentious proceeding been a regular 'suit', the culmination of such a contentious proceeding would have been ended in a 'decree' and such a 'decree' would have been appealable under Section 96. However, as a contentious proceeding is not a regular 'suit', though it shall be treated as a 'suit' is nearly as possible, there is no 'judgment' and, as there is no 'judgment', no 'decree' is framed and as there is no 'decree', there is no 'appeal' under Section 96. No wonder, therefore, Section 299 of the Indian Succession Act, 1925, specifically provides for 'appeal' against every orders made by virtue of the powers conferred under the Indian Succession Act, 1925. Such an order would include even such an order, which is passed on culmination of the contentious proceeding. 44. A proceeding for grant of 'probate' or 'letter of administration' commences with the filing of application seeking 'probate' or 'letter of administration', as the case may be, and not by filing of a 'plaint'. Not only Section 26, but also order IV, Rule 1 provides that every 'suit' shall be instituted by presentation of a 'plaint'. Order IV, Rule 1 clearly provides that every 'suit' shall be instituted by presenting a plaint, in duplicate, to the court or such officer as it appoints in this behalf. Hence, presentation of a 'plaint' is the institution of the 'suit'; whereas the proceeding, seeking 'probate' or 'letter of administration', is initiated under the Indian Succession Act, 1925, not by filing a plaint. Section 295 merely states that after the proceedings for grant of 'probate' or 'letter of administration' becomes a contentious proceedings, it should be treated as nearly as possible as a 'suit'. Nowhere, Section 295 provides that once the proceeding becomes a contentious proceeding, the proceeding shall be treated as a 'regular suit'. What Section 295 says is that a contentious proceeding shall be treated, or shall be dealt with, as nearly as may be possible, in the form of a 'regular suit'. Nowhere, Section 295 provides that once the proceeding becomes a contentious proceeding, the proceeding shall be treated as a 'regular suit'. What Section 295 says is that a contentious proceeding shall be treated, or shall be dealt with, as nearly as may be possible, in the form of a 'regular suit'. In short, a contentious proceeding becomes a suit only in its form and not in substance. Faced with the question as to whether a contentious proceeding becomes a suit, and whether a 'decree' is required to be framed therein, the Patna High Court, in Nagendra Rai v. Jai Narayan Bharti AIR 1994 Pat. 144 , held that the use of the words 'as nearly as may be', in Section 295 clearly shows that the Legislature never intended that the contentious proceeding shall be a 'regular suit'. The contentious proceeding is not a 'suit' under the ordinary law. By virtue of Section 295, a proceeding for probate or letter of administration takes the form of a regular suit for the limited purpose of applying to it the provisions of the Code of Civil Procedure, but the proceeding retains its character as a proceeding and does not, at any point of time, becomes a regular suit. I see no reason at all to take a view different from what has been taken in Nagendra Rai (supra). 45. When a person applies for 'probate' or 'letter of administration' by way of a petition in terms of the mandates of Section 276 and 278 of the Indian Succession Act, 1925, such a petition is not governed by order VII of the Code of Civil Procedure and does not give rise to regular suit. 46. Moreover, though an 'order' is also a formal expression of a court giving its decision, it is not a 'decree'. Section 33 of the Code of Civil Procedure provides that when a judgment is pronounced, a 'decree' shall follow. In a 'probate proceeding', the court, does not pass a 'judgment' within the meaning of Section 33. It must be borne in mind that a decree' conclusively determines the rights of the parties with regard to all or any controversy raised in the 'suit'. However, as per Section 273of the Indian Succession Act, 1925, a 'probate' or 'letter of administration' is the conclusive proof of the representative title. It must be borne in mind that a decree' conclusively determines the rights of the parties with regard to all or any controversy raised in the 'suit'. However, as per Section 273of the Indian Succession Act, 1925, a 'probate' or 'letter of administration' is the conclusive proof of the representative title. In a probate proceeding, the court cannot, and does not, decide title and it is open to a person to challenge the title of the testator to the property even after a 'probate' Or 'letter of administration' is granted. Thus, an 'order', passed in a probate proceeding, even if becomes a contentious proceeding, would not be a 'decree' within the meaning of Section 2(2). In some statutes, there is provision for 'deemed decree'. For example, order XXI, Rule 58(4), Code of Civil Procedure provides that when any claim or objection is adjudicated under the said Rule, the 'order', made therein, shall be treated as if it is a 'decree'. There is no such equivalent provision of 'deemed decree' in respect of a proceeding for 'probate' or 'letter of administration'. 47. What emerges from the above discussion is this: For making an application for probate, or an application for letter of administration, the right accrues on the death of the testator, meaning thereby that within a period of three years from the date of death of the testator, application, seeking probate or letter of administration, must be made. Such an application may not be made for variety of reasons including the fact that, in a given case, the executor or the beneficiary may not even know about the existence of the Will or about the execution of the Will. In such circumstances, an application, under Section 5 of the Limitation Act, has to be made explaining the reason as to why the application for probate or letter of administration had not been (sic)' within three years from the date of the death of the testator and if it is satisfied that the reasons assigned are sufficient, the court may condone the delay. 48. 48. Thus, though, as a matter of law, the right to apply for granting of probate or letter of administration accrues on the death of the testator and such an application has to be made within three years from the date of the death of the testator, yet when such an application is made beyond the prescribed period of three years, an application, under Section 5 of the Limitation Act, has to be made showing sufficient cause for not applying for probate or letter of administration, as the case may be within prescribed period and, if such an application is allowed, then and then only, the question of entertaining the application, seeking probate or letter of administration, as the case may be, would arise. 49. In the present case, the testator, admittedly, died on 16.5.1984. In such circumstances, the application for probate ought to have been made by the Respondent within three years from the date of the death of the said deceased, i.e., on or before 19.5.1987. As the application was made in the year 1996, there ought to have been an application for condonation of delay under Section 5of the Limitation Act. In such an application, the Respondent could have stated the reasons as to why the application had not been made within the prescribed period of three years and, if the court found the explanation convincing and believable, the condonation application could have been allowed. As no application was made under Section 5, though required, the application for probate could not have been entertained and allowed. 50. It has been submitted by Mr. Choudhury, learned Counsel for the Respondent, that an application, under Section 5 of the Limitation Act, cannot be made in a suit, for, an application for probate, which is contested, has to be treated, under the provisions of Section 295 of the Indian Succession Act, 1925, as a suit. Section 5, which is, otherwise, applicable to appeals and applications, cannot, according to Mr. Choudhury, be applied to suits and, hence, Section 5 would, perhaps, not be applicable to a belated application for probate or letter of administration. 51. Section 5, which is, otherwise, applicable to appeals and applications, cannot, according to Mr. Choudhury, be applied to suits and, hence, Section 5 would, perhaps, not be applicable to a belated application for probate or letter of administration. 51. While considering the above submission, it needs to be borne in mind that an application for probate or letter of administration, when made, gives rise to a proceeding and it is at that stage that the applicant has to satisfy the court that the application for probate or letter of administration, as the case may be, has been made within the prescribed period of limitation and, if not, sufficient cause for not applying within time exists and, for this purpose, when an application for probate or letter of administration is time-barred, it has got to be supported by an application made under Section 5 of the Limitation Act. A proceeding for probate or letter of administration commences when the application seeking probate or letter of administration, as the case may be, is made. This proceeding becomes treatable as a 'suit' only after the proceeding becomes a contentious proceeding within the meaning of Section 295 of the Indian Succession Act. There is no scope for a person to apply for probate or letter of administration beyond the prescribed period of limitation unless an application under Section 5 of the Limitation Act 1963 is made and allowed. If the application, made under Section 5 of the limitation Act is allowed, it is then and then only that it would, in the event, of resistance, take the shape of a suit in terms of Section 295 of the Indian Succession Act. 52. When the application for seeking probate, made in the present case, was beyond the prescribed period of 3 years, the application was barred by limitation and ought not to have been entertained without condoning the delay as may be done, in a given case, under Section 5 of the Limitation Act. 53. In the result and for the foregoing reasons, this appeal is allowed. The impugned order, dated 30.11.2002, shall accordingly stand set aside. 54. Send back the LCR. Appeal allowed.