Arvind Garach vs Pragna Garach and Others

Harish Tandon, J.—The order dismissing an application under Order VII Rule 11 of the Code of Civil Procedure for rejection of an application for probate, subsequently converted into contentious cause, is assailed in this revisional application.

Admittedly, one Kantilal T. Garach made and published his last Will and testament dated 24th August, 2001. The said Will was duly registered with the Registering Authority on the same day. The said testator died on 26th June, 2002 leaving behind two sons, widow, two sons of the pre-deceased son and two daughters, who would have normally inherited the estate left by him in case of intestacy. In the said Will, the said testator appointed one of his son as executor and further made a provision that in the event of the death of the said executor, the other son shall act as an executor of the said Will.

Admittedly, an application for probate came to be filed on 8th June, 2009 giving rise to the registration of Act XXXIX of 1925 Case (L) No. 146 of 2009. On an objection being raised by one of the daughter, the application for probate is converted into a contentious cause and renumbered as O.S. 7 of 2011. The said objector thereafter took out an application under Order VII Rule 11 of the Code for rejection of the plaint on the ground that an application for probate, having filed beyond three years from the date of the death of the testator, is barred under Article 137 of the Limitation Act.

The Trial Court rejected the said application, that is how the matter has reached this Court under Article 227 of the Constitution of India.

Mr. Mohit Gupta, learned advocate appearing on behalf of the petitioner, relies upon a judgment of the Hon''ble Supreme Court rendered in case of Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur and Others, AIR 2008 SC 2058 : (2008) 2 CTC 850 : (2008) 6 SCALE 112 : (2008) 8 SCC 463 : (2008) AIRSCW 2726 in support of his contention that Article 137 of the Limitation Act applies to an application for probate and, therefore, the said application is apparently barred under the Limitation Act. According to him, the ratio laid down in case of Kunvarjeet Singh Khandpur (supra) is applied and accepted by the Hon''ble Supreme Court in a subsequent decision rendered in case of Krishna Kumar Sharma Vs. Rajesh Kumar Sharma, AIR 2009 SC 3247 : (2009) 4 JT 533 : (2009) 5 SCALE 286 : (2009) 11 SCC 537 : (2009) 4 SCR 1223 : (2009) AIRSCW 3275 : (2009) 3 Supreme 165 . The learned advocate would contend that Article 137 of the Limitation Act postulates a period of three years to any other application for which no period of limitation is provided elsewhere and, therefore, the limitation would begin from the date of the death of the testator. By interpreting the expression "right to apply accrues", the learned advocate submits that the moment the testator dies, the right of the executor to apply for probate accrues and, therefore, the limitation would begin from the date of the death and not any time thereafter. By placing reliance upon a judgment of the Co-ordinate Bench of this Court rendered in case of Manmohan Jhunjhunwala Vs. Biswanath Jhunjhunwala, (2012) 1 CHN 68 , the learned advocate submits that the judgment of the Apex Court in case of Kunvarjeet Singh Khandpur (supra) was relied upon and it was held that Article 137 of the Limitation Act applies even in case of a probate proceeding. In another Co-ordinate Bench decision delivered in case of Kamakhya Prasad Gupta and Another Vs. Jibon Lal Gupta, (2010) 6 GLR 467 : (2011) 1 GLT 435 , it is observed that there is an applicability of Article 137 of the Limitation Act even in case of an application for probate. By referring the decision of the Delhi High Court in case of Karan Singh and Ors. v. State and Ors. (FAO No. 169 of 2011 decided on 25th April, 2011), the learned advocate submits that it is a consistent view that Article 137 of the Limitation Act is squarely applies to a probate proceeding. Lastly, the reliance is placed upon a Division Bench judgment of this Court in case of Paritosh Patra Vs. Angur Bala Rana, AIR 2014 Cal 133 : (2014) 2 CHN 657 : (2014) 2 WBLR 911 , wherein the Division Bench reiterated the same principle of law that the provision of Article 137 of the Limitation Act applies in connection with the probate proceeding.

On merit, it is submitted on behalf of the petitioner that though there is an averment in an application for probate that the executors have declined to act in such capacity, but there is no elaborate fact mentioned therein as to when such refusal came and, therefore, the application is bereft of cause of action.

Since the point assumes some importance because of the two judgments of the Hon''ble Supreme Court rendered in case of Kunvarjeet Singh Khandpur (supra) and Krishan Kumar Sharma (supra), this Court requested Mr. S.P. Roy Chowdhury, Mr. Sabyasachi Bhattacharya, learned senior advocates and Mr. Hiranmoy Bhattacharya, learned advocate, to assist the Court as Amicus Curiae and to enlighten on the legal issue.

According to Mr. S.P. Roy Chowdhury, learned senior advocate, there cannot be any period of limitation for applying a probate as held in case of In Re: Ishan Chunder Roy, (1881) ILR (Cal) 707 . Mr. Roy Chowdhury further submits that it has been all along a consistent view of this Court that there is no period of limitation enshrined under the Limitation Act for an application for probate and placed reliance upon several judgments, viz., Durgapada Bera Vs. Atul Chandra Bera and Others, AIR 1937 Cal 595 . He further submits that even the Bombay High Court in case of Vasudev Daulatram Sadarangani Vs. Sajni Prem Lalwani, AIR 1983 Bom 268 : (1984) 1 BomCR 211 : (1983) 85 BOMLR 113 has not been held in explicit terms that an application for probate filed after three years from the date of the death of the testator/testatrix is barred under Article 137 of the Limitation Act. According to him, a departure is shown in a judgment rendered by the Hon''ble Supreme Court in case of Kunvarjeet Singh Khandpur (supra), wherein it is held that the provisions of Article 137 of the Limitation Act applies in case of a probate proceeding, but the period of limitation shall reckon from the date when right to apply accrues. He, thus, submits that the right to apply does not emanate from the date of the death, but should be interpreted when there is any denial of such right or when the occasion to assert the right accrues, which is distinct from the date of the death. He further submits that Section 3 of the Limitation Act though contains the rigorous provisions, but should be construed and interpreted in a broad based and liberal manner by referring the judgment rendered in case of Union of India (UOI) and Others Vs. West Coast Paper Mills Ltd. and Another, AIR 2004 SC 1596 : (2004) 3 CTC 53 : (2004) 164 ELT 375 : (2004) 2 JT 183 : (2004) 2 SCALE 285 : (2004) 2 SCC 747 : (2004) 135 STC 265 : (2004) AIRSCW 838 : (2004) 1 Supreme 1051 . Mr. Roy Chowdhury further submits that right to apply accrues either when there is an invasion of such right or denial thereof, as held in Major (Retd.) Major (Retd.) Inder Singh Rekhi Vs. Delhi Development Authority, AIR 1988 SC 1007 : (1988) 2 ARBLR 270 : (1988) 2 JT 6 : (1988) 1 SCALE 612 : (1988) 2 SCC 338 : (1988) 3 SCR 351 : (1988) 1 UJ 692 . He, thus, concludes that though the provisions of Article 137 of the Limitation Act applies to an application for probate, but the limitation would begin when the right to apply accrues and not from the date of the death of the testator/testatrix.

Mr. Sabyasachi Bhattacharya, learned senior advocate, adopt the submissions of Mr. Roy Chowdhury and additionally submits that Section 211 of the Indian Succession Act, 1925 postulates that the executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes and the property comprising the estate of the deceased vests in him. By referring Section 213 of the Indian Succession Act, he submits that the Probate Court recognizes the right of the executor while granting the probate, but does not declare the title in respect of the property being the subject matter of the Will. According to him, there is no outer limit provided for an application for probate to be taken out by the executor, which can be reasonably deciphered from Section 293 of the Indian Succession Act, which put a fatter to grant the probate of a Will before the expiration of seven clear days or clear fourteen days in case of a Letters of Administration from the day of the testator''s death. He, thus, submits that once the statute is silent on the outer limit and consciously did not incorporate the same therein, the legislative intent, which can be gathered by such omission is that it never intended to put outer limit for filing an application for probate.

Mr. Hiranmoy Bhattacharya, learned advocate, reiterates the submissions advanced by Mr. Roy Chowdhury and Mr. Sabyasachi Bhattacharya and submits that after the judgment rendered in case of Kunvarjeet Singh Khandpur (supra) it cannot be said that there is no period of limitation to an application for probate as Article 137 of the Limitation Act applies, but the period of limitation should be calculated from the date when the right to apply accrues, which does not mean that it should reckon from date of the death. According to him, the right to apply must be interpreted in the context of each case and there cannot be a definite formula for the same.

Mr. Jiban Ratan Chatterjee, learned advocate appearing on behalf of the opposite party No. 1, submits that the application for probate having filed within three years from the date of refusal of the executors, it is well within the period of limitation and cannot be rejected at the stage of Order VII Rule 11 of the Code. By relying upon the averments made in paragraph 8 of the application for probate, Mr. Chatterjee submits that the application cannot be said to be barred under Article 137 of the Limitation Act. He further submits that the Court shall not look into other documents or papers or petition than the application for probate under Order VII Rule 11 of the Code taken out on the ground of being barred by law. According to him, if evidence is required to ascertain the period of limitation, the application should not be thrown at such stage. He succinctly argues that if the point of limitation is debatable one and cannot be decided without evidence, the application should not be rejected under Order VII Rule 11 of the Code.

The point emerged from the respective submissions of the counsels are two folds; firstly, whether Article 137 of the Limitation Act has any manner of applicability to an application for probate, secondly, what should be the starting point of the limitation under Article 137 of the Limitation Act in respect of an application for probate.

The facts as narrated above are more or less admitted and, therefore, to avoid the prolixity of repetition, it would not be proper to elaborate the same, as the points as indicated above are pure question of law.

The genesis of Article 137 of the Limitation Act can be traced from Article 181 of the Limitation Act, 1959. The Limitation Act contains different periods for a specified application. Even in the Limitation Act of 1908 where there is no period provided for a specific application, a residuary clause is included providing limitation for other applications. Article 181 of the Limitation Act, 1908 being the residuary clause contemplates the application for which no period of limitation is provided elsewhere in the schedule or by Section 48 of the Code of Civil Procedure, 1908, which was retained in the Limitation Act of 1963 with certain modification, which can be reasonably ascertained from the comparison of two provisions, which are depicted below:

Such distinction is well explained by the Hon''ble Supreme Court in case of The Kerala State Electricity Board, Trivandrum Vs. T.P. Kunhaliumma, AIR 1977 SC 282 : (1976) 4 SCC 634 : (1977) 1 SCR 996 : (1977) 9 UJ 16 in these words:

"18. The alteration of the division as well as the change in the collocation of words in Article 137 of the Limitation Act 1963 compared with Article 181 of the 1908 Limitation Act shown that applications contemplated under Article 137 are not applications confined to the Code of Civil Procedure. In the 1908 Limitation Act there was no division between applications in specified cases and other applications as in the 1963 Limitation Act. 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 the applicant or the appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application during such period.

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. 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 falling within the scope of Article 137 of the 1963 Limitation Act."

Thus, an application under any specified Act before the Civil Court is an application conceived under Article 137 of the Limitation Act, 1963 as the distinction, which was sought to be made under Article 181 of the Limitation Act, 1908 have been obliterated by deletion and amendment of Article 137 of the Limitation Act, 1963. It is no longer res integra that any other applications is not restricted to an application under the Code of Civil Procedure, but an application under special statute being filed before the Civil Court.

Though this Court in case of Ishan Chunder Roy (supra) in categorical terms held that no law of limitation governs the application for probate, the same is not a good law in view of the judgment pronounced in case of Kerala SEB (supra).

In case of Kunvarjeet Singh Khandpur (supra), the Apex Court was confronted with the first point as jotted down above and was required to answer whether Article 137 of the Limitation Act, 1963 applies to an application for probate.

The entire argument of the petitioner is based upon the said judgment, wherein the Apex Court noticed the judgment of the Bombay High Court rendered in case of Vasudev Daulatram Sadarangani (supra) paraphrasing the proposition of law in this regard. It would be apt to quote the extracts from the Bombay High Court judgment, which is reproduced herein:

"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 apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceased''s death;

(e) delay beyond 3 years after the deceased''s 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."

The petitioner derived inspiration from the observations of the Apex Court, wherein it is said that conclusion (b) is not correct, to contend that right to apply accrues on the date of the death of the testator.

Before proceeding further, it would be apt to narrate facts of Kunvarjeet Singh Khandpur (supra) to ascertain whether the interpretation sought to be made by the petitioner is correct or not. In the said case, the testator made and published the Will on 9th September, 1991 and expired on 5th October, 1995. An application for grant of probate was filed in the year 1996 being Probate Petition No. 22 of 1996 by one Mrs. Nirmaljit Kaur. The said application for probate was withdrawn on 9th August, 1999 and a subsequent application for Letters of Administration was filed on 7th August, 2002. An argument was advanced that the said application is barred by limitation having filed beyond three years from the date of the death of the testator. Alternatively, it was argued that once an application for probate filed by Mrs. Kaur was withdrawn on 9th August, 1999 and if the limitation is to be counted, the subsequent application for Letters of Administration is beyond of three years and, therefore, is time barred. The Apex Court noticed the provisions of Article 137 of the Limitation Act, 1963 and poised a further point as to what would be the meaning of the expression "right to apply" incorporated under the said provision. It is held that proceeding arising from an application for probate merely gives recognition to perform a duty, which is a continuing right. It was ultimately held that the moment the right as an executor is impinged by any person, the right to apply for a probate accrues and it was held that since Mrs. Kaur withdrew the probate proceeding on 7th August, 1999 and the subsequent application for Letters of Administration came to be filed on 7th August, 2002, the right to apply accrues on 9th August, 1999 and, therefore, the said application is barred. The ratio, which could be culled out from the said report can be reasonably inferred that right to apply was never interpreted to mean the date of the death of the testator, but when the right to seek recognition from the Court to perform the duty arises.

The similar view is expressed by another Bench decision of the Apex Court in case of Krishan Kumar Sharma (supra) where identical point arose whether Article 137 of the Limitation Act, 1963 applies to an application for probate. It is answered thus:

"5. Learned counsel for the appellant submitted that the interpretation placed by the High Court is not correct. The primary question that needs reconsideration is whether Article 137 of the Limitation Act is applicable. It appears that certain other aspects were considered by the High Court to which reference shall be made subsequently.

6."11. In Kerala SEB v. T.P. Kunhaliumma it was inter alia observed as follows: (SCC pp. 638-39, paras 18 and 22)

"18. The alteration of the division as well as the change in the collocation of words in Article 137 of the Limitation Act 1963 compared with Article 181 of the 1908 Limitation Act shown that applications contemplated under Article 137 are not applications confined to the Code of Civil Procedure. In the 1908 Limitation Act there was no division between applications in specified cases and other applications as in the 1963 Limitation Act. 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 the applicant or the appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application during such period.

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. 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 falling within the scope of Article 137 of the 1963 Limitation Act."

In terms of the aforesaid judgment any application to civil court under the Act is covered by Article 137. The application is made in terms of Section 264 of the Act to the District Judge. Section 2(bb) of the Act defines the District Judge to be the Judge of the Principal Civil Court.

Further in S.S. Rathore v. State of M.P. it was inter alia stated as follows (SCC p. 585, para 5)

''5. The appellant''s counsel placed before us the residuary Article 113 and had referred to a few decisions of some High Courts where in a situation as here reliance was placed on that article. It is unnecessary to refer to those decisions as on the authority of the judgment of this Court in Pierce Leslie and Co. Ltd. v. Violet Ouchterlony Wapshare it must be held that Article 113 of the Act of 1963, corresponding to Article 120 of the old Act, is a general one and would apply to suits to which no other article in the Schedule applies.''

Article 137 of the Limitation Act reads as follows:

The crucial expression in the petition (sic Article) 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 and 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, Ref. In para 17 of the said judgment it was noted as follows: (AIR p. 222)

''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 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. 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 Article 137 of the Limitation Act, 1963.''

Though the nature of the petition has been rightly described by the High Court, it was not correct in observing that the application for grant of probate or letters of administration is not covered by Article 137 of the Limitation Act. Same is not correct in view of what has been stated in Kerala SEB case.

Similarly reference was made to a decision of the Bombay High Court in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani. Para 16 reads as follows: (AIR p. 270)

"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 apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceased''s death;

(e) delay beyond 3 years after the deceased''s 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."

These aspects were highlighted in Kunwarjeet Singh Khandpur v. Kirandeep Kaur, at SCC pp. 466-68, paras 11-15."

The proposition of law enunciated in the above reports is that Article 137 of the Limitation Act applies to an application for probate, provided having filed within three years from the date when the right to apply accrues. The right to apply has to be interpreted in the perspective of the dispute having arisen for which it becomes necessary to have the probate granted to a Will of a testator/testatrix. The Apex Court in case of Major (Retd.) Inder Singh Rekhi (supra) was considering a matter relating to Section 20 of the Indian Arbitration Act, 1940, which provides that any person having entered into an arbitration agreement before the institution of any suit being the subject matter of the agreement or any part thereof, may apply to a Court having jurisdiction when the dispute arose. It is held that the dispute would arise when a claim of one is denied by other, in these words:

"4. Therefore, in order to be entitled to order of reference under S. 20, it is necessary that there should be an arbitration agreement and secondly, difference must arise to which this agreement applied. In this case, there is no dispute that there was an arbitration agreement. There has been an assertion of claim by the appellant and silence as well as refusal in respect of the same by respondent. Therefore, a dispute has arisen regarding non payment of the alleged dues of the appellant. The question is for the present case when did such dispute arise. The High Court proceeded on the basis that the work was completed in 1980 and, therefore, the appellant became entitled to the payment from that date and the cause of action under Art. 137 arose from that date. But in order to be entitled to ask for a reference under S. 20 of the Act there must not only be an entitlement to money but there must be a difference or a dispute must arise. It is true that on completion of the work a right to get payment would normally arise but where the final bills as in this case have not been prepared as appears from the record and when the assertion of the claim was made on 28th Feb. 1983 and there was nonpayment, the cause of action arose from that date, that is to say, 28th Feb. 1983. It is also true that a party cannot postpone the accrual of cause of action by writing reminders or sending reminders but where the bill had not been finally prepared, the claim made by a claimant is the accrual of the cause of action. A dispute arises where there is a claim and a denial and repudiation 1009 of the claim. The existence of dispute is essential for appointment of an arbitrator under S. 8 or a reference under S. 20 of the Act. See Law of Arbitration by R.S. Bachawat, 1st Edition, page 354. There should be dispute and there can only be a dispute when a claim is asserted by one party and denied by the other on whatever grounds. Mere failure or inaction to pay does not lead to the inference of the existence of dispute. Dispute entails a positive element and assertion in denying, not merely inaction to accede to a claim or a request. When in a particular case a dispute has arisen or not has to be fund out from, the facts and circumstances of the case."

The recourse can further be taken to the provisions of Section 34 of the Specific Relief Act, 1963, contained in Chapter 6 thereof, which relates to a declaratory decrees, wherein any person entitled to any legal character or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right.

The right to apply therefore accrues when it becomes eminent for the executor to establish his right in such character and not from the date of the death of the testator. The right of apply would accrue when it becomes necessary to apply, which should be filed within three years from such date.

So far as the attack on the merit of an application is concerned, it is clearly spelt out in paragraph 8 of the said application that because of the refusal by the executor to apply for probate, the Letters of Administration is taken out by one of the heirs and it cannot be said from the bare reading of the aforesaid averments that the said application is filed beyond three years from the date of such refusal. Once the point of limitation is debatable and can only be determined on the evidence to be adduced in this regard by the respective parties, the Court should not dismiss the application under Order VII Rule 11 of the Code.

The cause of action is not defined in the statute book, but the interpretation has come out from the different judicial pronouncement. The cause of action is a bundle of facts to be proved by cogent evidence to get the relief claimed before the Court. It cannot be said with reasonable certainty from the bare reading of the paragraph 8 of the Letters of Administration that it does not constitute cause of action.

The Letters of Administration has been converted into a contentious cause and the plea of limitation having taken shall be one of the issues to be answered by the Court after full-fledged trial.

This Court, therefore, does not find that the application for Letters of Administration is barred by law of limitation and should be nipped in the bud at the stage of Order VII Rule 11 of the Code.

The revisional application, therefore, fails.

There will be no order as to costs.