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2017 DIGILAW 1272 (GAU)

Banavatta Changkakoti v. Urmila Changkakoti

2017-09-11

PRASANTA KUMAR DEKA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. A Dhar, learned counsel appearing on behalf of the petitioners. Also heard Mr. P K Kalita, learned senior counsel assisted by Mr. N Alam, learned counsel appearing on behalf of the respondents. 2. In this revision application, judgment dated 18.05.2017 is under challenge whereby an application for condonation of delay in Misc Probate Case No.05/2016 was rejected at the very threshold of the probate proceeding by the learned court of District Judge, Kamrup at Amingaon. The present petitioner preferred the probate proceeding on the basis of a registered deed of WILL No.189 of 2007, purportedly shown to be executed by the testator, Arun Changkakoti who died on 27.05.2011. It is submitted that the testator, Arun Changkakoti is the paternal uncle of the present petitioners, who preferred the probate proceeding against the respondents, the respondent No.1, being the divorced wife of testator, Lt. Arun Changkakoti and the respondent No.2, the son of the testator. Along with the probate petition, an application under Section 5 of the Limitation Act, 1963 was filed for condonation of delay of 720 days in preferring the said probate application under Section 276 read with Section 273 of Indian Succession Act, 1925 inasmuch as the testatator died in the month of May, 2011. The ground for the delay as stated in the application is that while on 25.11.2015, the petitioners were checking old clothes and papers, they came across the certified copy of the WILL. Thereafter, they searched for the witnesses of the said WILL and Sri Gopal Das could be located on 21.03.2016, where after the petitioner consulted the learned counsel and subsequently preferred this probate petition along with the delay condonation petition. The said petition for delay condonation was registered as Misc(J) Case No.6/16 in Probate Case No.5/2016. 3. The present respondents raised their objection against the WILL in question as fake while denying the causes shown for the delay. During the hearing of the said delay condonation petition, the respondents also brought to the notice of the court below that the present petitioners entered into an agreement for sale of the land covered by the said WILL upon which the names of the respondents were mutated. During the hearing of the said delay condonation petition, the respondents also brought to the notice of the court below that the present petitioners entered into an agreement for sale of the land covered by the said WILL upon which the names of the respondents were mutated. In the said agreement for sale, the petitioner No.1 had described himself as the owner and possessor of the said land and there after upon finding the names of the present respondents on the land record, manufactured the WILL which as per the contention of petitioner came to their knowledge on 25.11.2015. The learned court below vide order dated 18.05.2017 disposed of the said Misc(J) Case No.6/2016 arising out of Misc Probate Case No.5/2015 thereby rejecting the delay condonation petition resulting the dismissal of the probate proceeding without being examined the WILL of Late Arun Changkakati to be the last WILL. Refraining from commenting on the genuineness of the WILL, presuming it to be a genuine one, the solemn last wish and desire of entrustment of the bequeathed property on the petitioners for its enjoyment by the deceased, Arun Changkakati was denied while the probate proceeding was put to the tolerance test under Section 5 of the Limitation Act, 1963. 4. Being aggrieved, the said judgment has been put under challenge in this Revision Application. Mr. Dhar submits that the learned court below rejected the delay condonation petition on the satisfaction that the length of delay was on the higher side and though the WILL was stated to have been executed on 12.06.2007, the petitioner claimed to have accidently discovered the same amongst the old papers on 25.11.2015. Thereafter their explanation, like making enquiry in the Revenue Office through the advocate, locating the witness of the Will and preparation of the Probate petition was not convincing and inspiring for condonation of the delay. The learned court below also disbelieved the fact of discovery of the said WILL after eight years of the death of the testator. 5. Mr. Dhar relied the decision of the Hon’ble Apex court in Krishna Kumar Sharma Vs. Rajesh Kumar Sharma reported in 2009(3) Supreme 165 . Mr. The learned court below also disbelieved the fact of discovery of the said WILL after eight years of the death of the testator. 5. Mr. Dhar relied the decision of the Hon’ble Apex court in Krishna Kumar Sharma Vs. Rajesh Kumar Sharma reported in 2009(3) Supreme 165 . Mr. Dhar relying the ratio laid down by the Hon’ble Supreme Court submits that the petitioners while filing an application for grant of probate or letters of administration are not asserting their right rather they sought for the permission of the court to perform the duty and trusts reposed on them by the testator. The said duty is only moral one and it cannot be termed to be a legal right asserting the right of the petitioners unlike other suits. Mr. Dhar by bringing to the notice the discussions made by the court below submits that the court below was totally wrong in considering the quantum of delay without examining the causes shown for the said delay. So, he sought for interference of the said impugned order by this Court. 6. Mr. Kalita, learned senior counsel on the other hand, objects to the submission made by Mr. Dhar and submits that the causes shown for condonation of the delay of 720 days have no basis at all. He submits that the petitioners failed even to put forth causes at least for the court to bring a reasonable preponderance of probabilities in order to accept the fact of discovery of the WILL. It is totally unbelievable the fact of discovery, as had the WILL been a genuine one there is no reason/reasons for waiting eight years to get the probate of the said WILL. It is submitted that the petitioner No.1 decided to deprive the present respondents from their legitimate right over the land described in the WILL and having found their names to be mutated, manufactured the said WILL in order to deprive the present respondents. Supporting the findings of the court below, Mr. Kalita submits that there is no illegality on the part of the court below in giving its finding by rejecting the delay condonation petition. 7. Considered the submission of both the learned counsels. The ratio laid down by the Hon’ble Apex Court in 2009(3) Supreme 165 (supra) is reproduced herein below: “7. Article 137 of the Limitation Act reads as follows: 137. 7. Considered the submission of both the learned counsels. The ratio laid down by the Hon’ble Apex Court in 2009(3) Supreme 165 (supra) is reproduced herein below: “7. Article 137 of the Limitation Act reads as follows: 137. Description of application: Any other application for which no period of limitation is provided elsewhere in the Division. Period of Limitation: Three years Time from which period begins to run: When the right to apply accrues.” 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 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 Division Bench of the Delhi High Court referred to several decisions. One of them was S.Krishnaswami and etc. v. E Ramiah (AIR 1991 Madras 214). In para 17 of the said judgment it was noted 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 letter 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 Proceeding 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 or 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 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 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 applications coming within the meaning of an ‘application’ under Art. 137 of the Limitation Act, 1963.” 8. From the said ratio, it is very much clear that the probate court while deciding delay condonation petition under Section 5 of the Limitation Act, 1963 in a situation similar to the case in hand, ought to have a state of mind set up ready to consider that the said probate application is being filed by the petitioner to perform a moral duty entrusted to the petitioner executor/beneficiary through the WILL by the testator but not in order to enforce a personal right. The Probate court need not examine the genuineness of the WILL while deciding an application under Section 5 of the Limitation Act, 1963. There is no doubt that the Article 137 of Limitation Act, 1963 requires to file a petition for condonation of delay while filing a probate application. However, keeping in view that to get a probate is a continuous obligation entrusted on the executor and/or the beneficiaries by the testator and the same being 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 probate court has a duty to enquire into the said aspects of the matter without going through the rigours of the Limitation Act, 1963. The said approach of the Probate Court cannot be equated with the one normally adopted by any other Courts which must apply and scan the causes shown in delay condonation petition to examine if the same could withstand the rigours of the Limitation Act, 1963. The said approach of the Probate Court cannot be equated with the one normally adopted by any other Courts which must apply and scan the causes shown in delay condonation petition to examine if the same could withstand the rigours of the Limitation Act, 1963. If the approach of the Probate court in disposing a delay condonation petition is not differentiated and changed, countless numbers of sacred souls would curse the judiciary as a whole. 9. In the present case in hand, the learned court below had given stress on the quantum of the delay of 720 days. Instead the court below ought to have considered prima facie whether the right to get the probate continues on the aforesaid touch stone. From the submission of the learned senior counsel appearing on behalf of the respondents it can be concluded the bequeathed property still exists and allegedly the petitioners are the beneficiaries of the bequeathed property and object of the entrustment of the property still continues inasmuch as they (petitioners) are still living. Let the last WILL of Late Arun Changkakati be examined by the competent court and give a decision to the effect that the same is the last WILL of the testator. Having not considered the said relevant criteria, this court finds no other alternative but to set aside the said judgment dated 18.05.2017 with a direction to the court below to condone the delay and initiate the probate proceeding in Misc Probate Case No.5/2016. The parties to this petition shall appear before the court below on 25.10.2017 and on submission of the copy of the order passed today, the learned court below shall initiate the proceeding and decide as per law. Any observation made in this application are not binding on the court below while deciding the probate application. 10. It would not be out of place to mention here that issue of point of limitation is a mixed question of law and facts. Evidence is necessary for deciding the same and as such the point of limitation, if raised in the written objection, filed by the persons appearing and opposing the grant of probate, an issue to that effect would definitely be framed. Evidence is necessary for deciding the same and as such the point of limitation, if raised in the written objection, filed by the persons appearing and opposing the grant of probate, an issue to that effect would definitely be framed. The probate court, in order to give a decision on the point of limitation, instead of deciding at a preliminary stage of the probate proceeding, better decide the same while deciding the probate proceeding as a whole, inasmuch whenever the probate proceeding becomes contentious, Section 295 of the Indian Succession Act, 1925 would come into play converting the proceeding to a suit. 11. Accordingly this revision petition succeeds. The judgment dated 18.05.2017 is set aside and the probate proceeding be initiated wherein an issue on the point of limitation be framed along with other issues to be framed after filing of objections by the respondents and the learned court below shall decide the issues as per law.