JUDGMENT : 1. This appeal has been filed by the appellant against the order dated 19.6.2019 passed in Judicial Misc. Case No.69 of 2018 in Original Suit (Probate) No.1 of 2017 on the file of the learned district Judge, Imphal East. 2. The appellant is the plaintiff and the respondent is the first defendant in the Original Suit (Probate). 2. The appellant is the plaintiff and the first respondent is the first defendant in the Original Suit (Probate). 3. The first defendant has filed Judicial Misc. Case No.69 of 2018 under Order 7, Rule 11 CPC read with Section 295 of the Indian Succession Act praying to reject/dismiss the application of the plaintiff for grant of probate of the will left by Late Huidrom Bira singh, who died on 16.01.1994 stating that the alleged Will of which probate was sought purports to make a gift of a plot of land measuring 65 x 130 feet with building constructed thereon covering 70 x 65 feet in favour of Huidrom Ajit singh, who is the beneficiary of the Will left by his father H. Bira Singh. 4. According to the first defendant, the above said plot of land was the subject matter of a suit in O.S.No.20 of 2005 on the file of the learned Civil Judge, Senior Division No.II, Manipur East, instituted by Huidrom Ongbi Ibemhal Devi, wife of late H. Bira Singh and others including H.Ajit Singh for declaration that they are entitled to get share in the suit land. The plaintiff Thounaojam (N) Huidrom (O) Shantibala Devi is the wife of H.Ajit Singh. By judgment dated 30.5.2006, the said suit was decreed and there was no appeal preferred by any aggrieved party. However, after a delay of 3830 days from the date of judgment, the legal heirs of H.Ajit Singh instituted a fresh suit being O.S.No. 43 of 2016 before the Court of learned Civil Judge, Senior Division, Imphal East for declaration of title to the same plot of Iand involved in the previous suit. 5. The first defendant contested the said suit and had also filed application being Judl. Misc. No.155 of 2017 for dismissal of the suit on the ground that the said suit is barred by principles of res judicata. The said application was allowed by the trial Court vide order dated 12.9.2017, thereby dismissing the suit O.S.No.43 of 2016. Pending Judl. Misc. The first defendant contested the said suit and had also filed application being Judl. Misc. No.155 of 2017 for dismissal of the suit on the ground that the said suit is barred by principles of res judicata. The said application was allowed by the trial Court vide order dated 12.9.2017, thereby dismissing the suit O.S.No.43 of 2016. Pending Judl. Misc. No.155 of 2017, the plaintiff has filed application for grant of probate. As against the dismissal of the suit O.S. No.43 of 2016, the plaintiffs therein have preferred appeal and the same is pending. 6. According to the first defendant, the application for probate does not disclose a cause of action and the same was filed beyond three years from the date when the right to apply accrues as provided under Article 137 of Limitation Act, 1963. Hence, the probate is liable to be rejected. 7. The plaintiff filed objection to Judl. Misc. Case No.62 of 2018 stating that it is the Will which was presented before the Hon'ble Court for probate and for subsequent order for Letter of Administration under Section 176 and 178 of Indian Succession Act. It is incorrect to say that the plot of land was a gift to the last son of the testator. Further, H. Ajit Singh was not the direct beneficiary of the Will and the beneficiaries are Shri Shri Govindajee Seva Committee as nominated by the testator in the Will itself. Since the Will existed before filing of O.S. No.20 of 2005, the same was to be preferential over other findings. There can be no bar by Limitation Law in the case of probate under the circumstances of the facts. In such circumstances, the plaintiff prayed to proceed with the findings of the new facts for the end of justice. 8. Upon consideration of the submissions made by both sides, the Court below, by the impugned order, held that the application for granting Probate or Letter of Administration of the Will dated 26.8.1993 is barred by limitation under Article 137 of the Limitation Act on the basis of the observations made by the Hon'ble Supreme Court and High Courts and accordingly, disposed of the Judl, Misc. Case. Aggrieved by the same, the plaintiff has filed the present appeal. 9. Case. Aggrieved by the same, the plaintiff has filed the present appeal. 9. Assailing the impugned judgment, the learned counsel for the appellant/plaintiff submitted that the court below ought not to have entertained the application for rejection of the application for probate solely on the ground of limitation point and it ought to have considered the rights accrued to the parties. In fact, the application which was filed by the first defendant for rejection of the application for probate was under no provision truly consistent with the allegation raised by him for rejecting the probate suit. 10. The learned counsel further submitted that the reasoning given by the court below in the impugned order is not at all acceptable, as once execution and attestation of the Will are proved, suspicion of delay no longer operates. He would submit that in an application for probate or Letter of Administration, the applicant seeks recognition from a Court of status as an executor of the Will to perform the duty cast by or under the Will. This duty is moral and not legal and is accepted by all as truth. The presentation of an application for probate of Letter of Administration is like a presentation of a forwarding letter or letter of introduction to the Will. For that an opportunity of explanation be given for the delay or an opportunity of examining witnesses be given to the plaintiff. This will cure any suspicion of delay in filing the probate. 11. Finally, the learned counsel submitted that in the instant case, the plaintiff has explained the reason for delay and therefore, Court below ought to have condoned the delay and dismissed the application preferred by the first defendant. Since the Court below applied its mind in a wrong way, the learned counsel for the appellant prayed for setting aside the order of the Court below and allow her to proceed the probate suit further. 12. Per contra, reiterating the findings of the Court below, the learned counsel for the first defendant argued that since the plaintiff has failed to file probate suit within the prescribed period, the Court below was right in negativing the plea of the appellant and allowed the application filed by the first defendant. 12. Per contra, reiterating the findings of the Court below, the learned counsel for the first defendant argued that since the plaintiff has failed to file probate suit within the prescribed period, the Court below was right in negativing the plea of the appellant and allowed the application filed by the first defendant. He would submit that the findings of the Court below are based on materials produced and also as per the pronouncements of the Hon'ble Supreme Court as well other High Courts. Therefore, there is no perversity in the order of the Court below and prayed for dismissal of the appeal. 13. I have considered the submissions made by learned counsel appearing on either side and also perused the materials available on record. 14. It is the say of the appellant/plaintiff that late H.Bira Singh had purchased land under Dag No.4560/4855 measuring 0.0289 acres and he died on 16.01.1994. At the time of death, H.Bira Singh left a Will in favour of the husband of the petitioner. After the death of her husband the petitioner found the Will and then she had filed application for probate of the said Will. 15. The grievance of the appellant is that the Court below dismissed the probate suit while allowing the application filed by the first defendant on the ground that condonation application under Section 5 of the Limitation Act has not been filed and the appellant should have filed petition for condonation of the delay in filing the probate suit. According to the appellant, there is no limitation in presenting the suit till the object of the Will is attained. 16. According to the plaintiff, late H.Bira Singh had two wives. The first wife lived in Yaiskul in the ancestral homestead land and in the Palace compound, the second wife and his youngest child H.Ajit Singh, who is the husband of the plaintiff and grand children were living. H.Bira Singh expired in 1994, his first wife died in 2010 and his second Wife died in 2009. The husband of the plaintiff died in 2007 and the Will in question was brought to the knowledge of the children of Late H.Ajit Singh only on 31.07.2017. Thereafter, the plaintiff has filed the probate suit. 17. H.Bira Singh expired in 1994, his first wife died in 2010 and his second Wife died in 2009. The husband of the plaintiff died in 2007 and the Will in question was brought to the knowledge of the children of Late H.Ajit Singh only on 31.07.2017. Thereafter, the plaintiff has filed the probate suit. 17. Though the learned counsel for the appellant contended that Law of Limitation is not applicable to the suit for grant of probate and that non-compliance with the provision of Section 281 of the Indian Succession Act is not fatal to an application for probate, the law is well settled as far as filing of application for grant of probate. In this regard, the court below has also held that the plaintiff has filed her suit for granting probate or Letter of Administration after about 23 years from the date of death of the testator, H.Bira singh and no application for condonation of delay was filed. 18. At this juncture, it would be pertinent to quote some of the decisions of the Hon'ble Supreme court in respect of filing application for grant of probate and applicability of Article 137 of the Limitation Act in probate or Letters of Administration proceedings. (i) In Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma, reported in AIR 1977 SC 282 : (1977)1 SCR 996 , the Hon'ble Supreme Court held: "22. The changed definition of the words "applicant" and "application” contained in Section 2(a) and 2(b) of the 1963 Limitation Act indicates the object of the Limitation Act to include petitions, original or otherwise, under special laws. The interpretation which was given to Article 181 of the 1908 Limitation Act on the principle of ejusdem generis is not applicable with regard to Article 137 of the 1963 Limitation Act. Article 137 stands in isolation from all other Articles in Part I of the third division. This Court in Nityananda Joshi's case (supra) has rightly thrown doubt on the two Judge Bench decision of this Court in Athani Municipal Council case (supra) where this Court construed Article 137 to be referable to application under the Civil Procedure Code. Article 137 includes petitions within the word "applications." These petitions and applications can be under any special Act as in the present case. 23. Article 137 includes petitions within the word "applications." These petitions and applications can be under any special Act as in the present case. 23. 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. ...... " (ii) In Kunvarjeet Singh Khandpur v. Kirandeep Kaur & Ors., reported in (2008) 8 SCC 463 , the Hon'ble Supreme Court, after taking note of the decision in Kerala State Electricity Board, held thus: "...... .... 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 court then concluded that the right to apply for probate accrues on the date of death of the testator." (iii) In Lynette Fernandes v. Gertie Mathias, reported in (2018) 1 SCC 271 , the Hon'ble Supreme Court dealt with the precise issue of the period of limitation applicable for an application for cancellation of a probate or letters of administration and has held as under: "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 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 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 unchallenged 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." (iv) In Krishna Kumar Sharma v. Rajesh Kumar Sharma, 2009 (3) Supreme 765, the Hon'ble Supreme Court held: "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: "77. 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. v. E Ramiah (AIR 1991 Madras 214). In para 17 of the said judgment it was noted as follows: "77. 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. 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. 19. The Court below also after referring to the decisions of the Apex Court in Kerala State Electricity Board (supra) and Gauhati High court in Kamakhya prasad Gupta and another v. Jibon Lal Gupta, 2010 (6) GLR 467, has held as under: "7. ...... 19. The Court below also after referring to the decisions of the Apex Court in Kerala State Electricity Board (supra) and Gauhati High court in Kamakhya prasad Gupta and another v. Jibon Lal Gupta, 2010 (6) GLR 467, has held as under: "7. ...... On going through the above observations of the Hon'ble Supreme Court and Gauhati High Court, it is crystal clear that application for granting probate or letter of administration is covered by Article 137 of the Limitation Act and therefore, probate or letter of administration application has to be filed within three years from the date of right to sue accrues and that the right to apply for probate accrues on the date of death of the testator. However, if the application of probate could not file within 3 years from the date of death of the testator, application for condonation of delay may file under section 5 of the Limitation Act. 8. In the instant case, the alleged ‘WILL’ was executed by Huidrom Bira Singh on 26.08.1993 and the said testator H.Bira Singh was expired in the year 1994 (as per application of the petitioner) but, on 16.01.1994 (as per application of defendant no.1). The petitioner in the Probate petition is the wife of one Huidrom Ajit Singh, youngest son of late Huidrom Bira Singh, the testator of the alleged 'WILL'. The husband of the petitioner, H.Aiit Singh was also expired but neither in the application of the petitioner not did in the instant application filed by the respondent no.1 mention when the said Huidrom Ajit singh died. The application for granting probate or letter of administration was filed on 07.09.2017 by the wife of the said (L) H.Ajit Singh alleging that she found the "WILL" from the bundles of papers on 31.07.2017 and came to know that the said (L) H.Bira Singh bequeathed a plot of land just adjacent to the Dharmasal to her late husband, H.Ajit Singh. The petitioner has filed her application for granting probate or letter of administration after about 23 years from the date of the testator, H.Bira Singh. No application under section 5 of the limitation Act is filed for condoning the delay. 9. The petitioner has filed her application for granting probate or letter of administration after about 23 years from the date of the testator, H.Bira Singh. No application under section 5 of the limitation Act is filed for condoning the delay. 9. Resultantly, the application for granting probate or letter of administration of the "WILL" dated 26.08.1993 is barred by limitation under section 137 of the Limitation Act on the basis of the observations made by the Hon'ble Supreme Court and High Courts. Since the application of granting probate or letter of administration is barred by limitation, I need not discuss other points raised by the ld. counsel of the respondent no.1. The case laws cited by the ld. counsel of the petitioner of the probate are not in favour of the petitioner." 20. The court below was right in holding that probate or letter of administration application has to be filed within three years from the date the right to sue accrues, as contemplated under Article 137 of the Limitation Act. 21. As stated supra, under Article 137 of Limitation Act, the period of limitation is three years and the said period of three years begins to run when the right to apply accrues. The application for probate of the Will is for the court's permission to perform a legal duty created by a will and is a continuous right which can be exercised any time after the death of deceased testator, as long as the right to do so survives. 22. In the instant case, admittedly, the plaintiff in the probate suit is not the beneficiary of the alleged Will. In fact, the beneficiary of the alleged Will is the husband of the plaintiff and the husband of the plaintiff also died. The husband of the plaintiff is none other than the youngest son of the testator Late H.Bira Singh. According to the plaintiff, she found the alleged Will from the bundles of paper on 31.07.2017 and then she came to know that the father of her husband Late H.Bira Singh bequeathed a plot of land just adjacent to the Dharmasala through Will dated 26.08.1993. The said fact was also recorded by the Court below in its order. 23. According to the plaintiff, she found the alleged Will from the bundles of paper on 31.07.2017 and then she came to know that the father of her husband Late H.Bira Singh bequeathed a plot of land just adjacent to the Dharmasala through Will dated 26.08.1993. The said fact was also recorded by the Court below in its order. 23. From the pleadings filed by parties, it is seen that the first wife of Late H.Bira Singh and others have filed suit being O.S. No.20 of 2005 on the file of the Court of Civil Judge, Senior Division No. II, Manipur East against the second wife of Late H.Bira Singh and the husband of the petitioner. In the said suit, the plaintiffs have claimed declaration that they are entitled to get share in the suit land being legal heirs of Late Bira Singh. By the judgment dated 30.5.2006, the said suit was decreed giving respective share to both the plaintiffs and the defendants. 24. Thereafter, the heirs of deceased Ajit Singh filed a suit in O.S. No.43 of 2016 against the plaintiffs and others in O.S. No.20 of 2005 before the same Court for declaration of title to the same plot of land involved in the previous suit. The said suit was contested by the first defendant herein and filed petition being Judl, Misc. Case No.155 of 2017 for dismissal of the suit on the ground that the suit is barred by the principles of res judicata. By an order dated 12.9.2017, Judl Misc. case No.155 of 2017 came to be allowed and thus the suit O.S.No.43 Of 2016 was dismissed as barred by the principles of res judicata. 25. It is seen that when Judl. Misc. case No.155 of 2017 was pending, the plaintiff has filed the instant application for grant of probate and as against the dismissal of the suit O.S.No.43 of 2016, she had also filed appeal and the said appeal is pending. These facts have not been disputed and/or denied by the first defendant. However, the said fact has not been taken note of by the Court below. 26. These facts have not been disputed and/or denied by the first defendant. However, the said fact has not been taken note of by the Court below. 26. Admittedly, the testator H.Bira singh expired in the year 1994 and the beneficiary of the alleged Will expired in the year 2007 and the petitioner filed application for grant of probate of the alleged Will in the year 2017, after 23 years from the date of death of the testator. 27. The court below though noted the continuous right of the plaintiff as to the filing of the application for probate, it has not dealt with the same in proper manner in its order and it has merely said that no application under Section 5 of the Limitation Act has been filed for condoning the delay in filing application for grant of probate. According to the plaintiff, she came to know about the alleged will only on 31.07.2017 and thereafter, she had filed the application for grant of probate. If the plaintiff had knowledge of the said Will at an earlier date, she would have placed strong reliance on the said document in the civil proceedings pending before the Courts below. Only because of the fact that the said Will came to her knowledge belatedly, she should not be denied an opportunity to establish her continuous legal right, if she is otherwise entitled to. 28. As stated supra, before filing the present application for grant of probate, there were suit proceedings in respect of the subject property, wherein both the plaintiff and the first defendant were parties. As against the dismissal of the suit O.S.No.43 of 2016 filed by the plaintiff at the instigation of the first defendant by filing Judl. Misc. case No.155 of 2017, appeal is stated to be pending. When the factual aspects stood thus, the court below, without considering the same, allowed the petition filed by the first defendant seeking rejection of the probate suit. 29. When the court below found that the plaintiff has failed to file application seeking condonation of delay in filing application for grant of probate, it ought to have considered the merits of the probate application and it ought not to have stated that since the application for granting probate or Letter of Administration is barred by limitation, it need not discuss other points. 30. 30. There is no doubt that Article 137 of the Limitation Act 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, it needs to be executed. The probate court has a duty to enquire into the said aspects of the matter without going through the rigorous of Limitation Act. 31. In the case on hand, the court below has mainly relied upon the delay and it has not examined the causes shown for the delay by the appellant/plaintiff. The court below ought to have considered prima facie whether the right to get the probate continues on the aforesaid touch stone. Since the beneficiary of the alleged Will is the husband of the plaintiff and the fact remains that the testator of the alleged Will is none other than the father-in-law of the plaintiff and also the fact that the entrustment of the property still continues inasmuch as the plaintiff is still living, the factual aspects of the instant case have to be examined by the Court below and a finding should be rendered. 32. Having not considered the said relevant criteria, this court finds no other alternative but to set aside the order impugned in the present appeal with a direction to the Court below to consider the merits of the matter in detail while dealing with the delay and initiation of probate proceedings. Since the point of limitation is a mixed question of law and facts, evidence is necessary for deciding the same. The court below, in order to give a decision on the point of limitation, instead of deciding at a preliminary stage of the probate proceedings, better decide the same while deciding the probate proceeding as a whole after adducing evidence, since probate proceedings under Section 295 of the Indian Succession Act would come into play converting the proceeding to a suit. 33. Accordingly, the appeal succeeds. The order dated 19.6.2019 passed in Judl. Misc. 33. Accordingly, the appeal succeeds. The order dated 19.6.2019 passed in Judl. Misc. case No.69 of 2018 on the file of the District Judge, Imphal East, is set aside and the matter is remanded to the Court below for fresh consideration with a direction to restore the probate suit viz., original Suit (probate) Case No.1 of 2017, to file and frame an issue on the point of limitation along with other issues with regard to merits of the probate; and after filing of objections by the first defendant and other defendants, if any, and then the Court below shall decide the issues as per law. 34. The appeal is, allowed in terms aforesaid. No costs. This Court makes it clear that it had expressed its prima facie view of the matter and any observation made hereinabove will not have any bearing on the proceedings to be initiated by the Court below hereinafter. It is always open to the court below to ascertain the right of the plaintiff in seeking benefit of the said Will and it is for the plaintiff to satisfy the Court below based on evidence and law.