Sakunthala vs Vijayalakshmi and others

Srinivasan, J.—This testamentary suit relates to the last will of one C. Vijayarangam Chettiar, alleged to have been executed by him on 6-2-1943. He died on 12-2-1944 leaving a son by name Murugesan Chettiar and a daughter by name Rajambal. Murugesan Chettiar died somewhere in 1951 and Rajambal died on 27-3-1970. The plaintiff in the suit is the daughter of Murugesan Chettiar. Defendants 1 to 3 are children of Nithyanandham, the son of Murugesan Chettiar (brother of the plaintiff), who died on 27-8-1981. Defendants 4 and 5 are purchasers of the property, which is the subject matter of the alleged will, from Nithyanandam under a sale deed dated 1-10-1973. It is the case of the plaintiff that two executors were appointed under the will and they were P. Velu Chettiar and P. Kandhaswamy Chettiar. It is the case of the plaintiff that the testator owned the house and ground bearing Door No. 25, Mangammal Street, Peddunaickenpat, Seven Wells, George Town, Madras-1 and a sum of Rs. 3,500 lent by him on a mortgage to one Smt. Manoranjithammal and Sri P. Chinna Durai Pillai. According to the plaintiff, the testator was performing certain charities during his lifetime and he directed the executors under the will to perform the charities, meet the expenses for the taxes and repairs of the house which was to be in the possession of Rajambal during her lifetime and pay the net income to Rajambal. It is also stated that under the will the properties were to be taken by Murugesan Chettiar after the death of Rajambal and after his lifetime by his descendants without any power of alienation. According to the plaintiff, the executors died during the lifetime of Rajambal and thereafter Rajambal was in possession of the properties enjoying the income. It is admitted that Rajambal realised the mortgage amount of Rs. 3,500.

The plaintiff filed a suit O.S. No. 9183 of 1975 on the file of the XIV Assistant Judge, City Civil Court, Madras, for a decree against her brother Nithyanandham and respondents 4 and 5 herein for declaring that the sale deed dated 1-10-1973 was invalid and for recovery of possession of property besides mesne profits, past and future. Respondents 4 and 5 herein filed O.S No. 1472 of 1980 in the same Court for recovery of possession of part of the said house and for mesne profits. Pending the suits, Nithyanandham died on 27-8-1981 and his widow and children were brought on record as his legal representatives. In the written statement filed in the suit O.S. No. 1983 of 1975 in June, 1976, an objection was taken by the defendants therein that the will set up by the plaintiff could not be relied upon or admitted in evidence. When the suit was first taken up for trial in 1977, the objection was reiterated by the defendants. There was an ex parte decree in August 1978 which was set aside in August 1982. The suit was taken up for trial and was part heard from 6-1-1984.

In November 1983, more than a year after the suit in the City Civil Court was restored, the plaintiff filed O.P. No. 364 of 1984 in this Court for grant of Letters of Administration with the will annexed. As the defendants filed a caveat in February, 1985, the petition was converted into a suit and registered as T.O.S. No. 23 of 1985.

The plaintiff filed Application No. 250 of 1985 for stay of all further proceedings in O.S. No. 9183 of 1975 and O.S. No. 1472 of 1980. Kader, J. passed an order on 31-10-1985 granting stay of the suits till the disposal of T.O.S. No. 23 of 1985 on condition that the plaintiff should deposit a sum of Rs. 50 per mensem from 1-11-1985 to the credit of O.S. No. 9183 of 1975 till the disposal of the proceedings before this Court. The plaintiff did not make the deposit regularly as directed by this Court. Defendants 4 and 5 filed Application No. 3693 of 1989 for revoking the aforesaid conditional order of stay made by this Court on 31 10-1985 in Application No. 250 of 1985.

The plaintiff filed Application No. 1434 of 1986 for permission to continue this T.O.S. as an indigent person. That was opposed by the defendants and after recording evidence, the Master allowed the application by his order dated 17-6-1987. Defendants 4 and 5 have filed an appeal against the said order of the Master and the same has been numbered as Application No. 181 of 1988.

When Application Nos. 181 of 1988 and 3693 of 1989 came before me for hearing, I felt that the testamentary suit would be barred by time under Art. 137 of the Limitation Act, I directed counsel on both sides to argue the question of limitation. After taking sufficient time for preparation, the case was argued on 11-9-1989.

Mr. P. Ananthakrishnan Nair, who appeared for the plaintiff, placed reliance on the provisions of O. 25, R. 9 of the Original Side Rules and the judgment of Division Bench of the Patna High Court in Ramanand Thakur Vs. Parmanand Thakur, . Mr. Natarajan of M/s. Jan & San, counsel for defendants filed typed notes referring to the relevant passages in various text books and the decisions of Courts. He brought to my notice the judgment of a single Judge of Punjab and Haryana High Court in the matter of the Estate of Late Sri Gurcharan Dass Puri AIR 1987 P&H 122 and an unreported judgment of Abdul Hadi J. in OP. 133 of 1989. I should place on record my appreciation for the fairness with which learned counsel for the defendants placed before me all the relevant materials on the subject including those which are against him.

The earliest of the statutes of Limitation Act XIV of 1859 was passed by the Legislative Council of India and received the assent of the Governor-General on 5th May, 1859. That came into operation in 1862. Before that, there was one Code of Laws for the Courts established by Royal Charter in the Presidency towns, and a separate Code for the Company''s Courts in each of the three Presidencies of Bengal, Madras and Bombay. The anomaly of having different Codes was done away with by the Act of 1859. According to the preamble, the express object of the Act was to amend and consolidate the Laws relating to the limitation of suits. All the provisions in the Act related only to suits. That Act was replaced by Act 9 of 1871, which was to consolidate and amend the law relating to the limitation of suits, appeals and certain applications to Courts and also to provide rules for acquiring ownership by possession. The Second Schedule to the said Act contained three Divisions, the first of which related to suits, while the second and third related to appeals and applications respectively. That Act was replaced by Act 15 of 1877, the object being to amend the law relating to the limitation of suits, appeals, and certain applications to Courts besides to provide rules for acquiring by possession the ownership and casements and other property. There again, the Second Schedule contained three Divisions as in the predecessor Act. Art. 178 therein read as follows:

Description of application

Period of Limitation

Time from which period begins to run.

Any other application for which no period of limitation is provided elsewhere in this Division.

Three years

when the right to apply accrues.

A question arose before a Division Bench of this Court comprising Sir Charles A. Turner, Kt. Chief Justice and Justice Muthusami Ayyar in Janaki v. Kesavalu ILR 8 Madras 207, whether an application under the Collection of Debts Act, 1860 (Act 27 of 1869), would fall under the scope of Art 178 of the Limitation Act of 1877. The Bench answered the question in the negative on the following reasoning;

It is argued that no other applications except in suits are dealt with by the Act if we were to hold that Art. 178 applies to all applications for which no period of limitation is provided, it would lead to most inconvenient results Such a Limitation could not have been intended to apply to an application for probate, an application under the Religious Endowments Act, an application for the appointment of new trustees & etc.

The Bench followed the rulings of the Calcutta High Court in re. Ishan Chunder Roy ILR 6 Cal. 707 and the Bombay High Court in Bai Manekbai v. Manakji, Kavasji ILR 7 Bom. 213.

In Gnanamuthu Upadesi v. Vana Koilpillai Nadar ILR 17 Mad. 379, Muttusami Ayyar, J. reiterated the same position. In that case, the application was one for probate. After referring to the ruling in Janaki v. Kesavalu ILR 8 Mad. 207, the Learned Judge observed as follows:--

...It was also explained in the case of Bai Wanekbai v. Majekji Kavasji ILR 7 Bom. 213, and in re Ishon Chundur Roy ILR 6 Cal. 707, that Art 178 of Schedule 2 of Act 15 of 1877 is limited to applications made under the Code of Civil Procedure, that an examination of all the other articles in the second schedule relating to applications, that is to say of the third division of that Schedule, shows that the applications therein contemplated are such as are made under the Code of Civil Procedure, and that though Art. 178, when read alone, seems capable of the widest extension to every application that can possibly be made to a Court, the applications referred to in that article are applications ejusdem generis, i.e., applications under the Code of Civil Procedure, and that any other construction would lead to the most inconvenient results. It is no doubt usual to demand an explanation when there is unreasonable delay in applying for probate, because the time when after the testator''s death the will is to be proved is not fixed, and the explanation is necessary to assist the Judge in coming to a finding as to the genuineness of the will propounded The reason for the exemption of applications for probate from the operation of the Limitation Act probably is that the application for probate is in the nature of an application for permission to perform a duty created by a will or for recognition as a testamentary trustee, and the right to apply continues so long as the object of the trust exists or any part of the trust if really created remains to be executed.

It is to be remembered that the question which arose in that case related to the applicability of the Limitation Act to Applications for probate. While holding that the Act was not applicable, the great judge gave a probable reason as to why the Legislature excluded applications for probate from the operation of the Limitation Act. The Learned Judge had no occasion to consider as to what could have been the position if the Act was made applicable by the Legislature to applications for probate.

The rulings in Janaki''s case ILR 8 Mad 207, and Gnanamuthu Upadesi''s case ILR 17 Mad. 379, were distinguished by another Division Bench of this Court in Sambasiva Mudaliar v. Panchanaxha Pillai ILR 31 Mad. 24. In that case, it was an application under S.40 of the Revenue Recovery Act. The Bench held that the said application was one that the machinery of the CPC be put in motion and, therefore, it was governed by the provisions of Art, 178 of the Limitation Act. The Bench observed that in the two cases referred to above, the applications had no reference to the provisions of the Code.

The position did not change when the Act of 1877 was replaced by Act 9 of 1908. Art. 181 of the later Act was the corresponding provision for Art. 178 of the earlier Act. The language in the Articles was identical. Hence, the earlier rulings referred to above were followed and it was being held that applications for probate or Letters of Administration were not governed by Art. 181 of the Limitation Act Vide Kalinath Chatterjee Vs. Nagendra Nath Chatterjee, .

The Parliament thought fit to change the position by introducing the Limitation Act No. 36 of 1963 which replaced the Act of 1908. As per the preamble, the new Act is to consolidate and amend the law for the Limitation of suits and other proceedings and purposes connected therewith. Even the definition of ''Applicant'' was changed, which indicated that the Act is intended to apply to proceedings under the Indian Succession Act also. While in the earlier Act an ''Applicant'' was defined as ''including any person from or through whom an applicant derives his right to apply'', the present Act defines an ''applicant'' as follows:--

applicant includes:--

(i) a petitioner;

(ii) any person from or through whom an applicant derives his right to apply;

(iii) any person whose estate is represented by the applicant as executor.

administrator or other representative.

The term ''application'' is defined for the first time in this Act as including a petition. Thus, there is a clear indication that Original Petitions which may not be covered by the CPC would also be within the purview of the present Act.

Art. 137 of Act 36 of 1963 is the provision corresponding to Art. 181 of the previous Act. There is a significant change in the language in column (1). Art. 137 is as follows:

Description of application

Period of Limitation

Time from which period begins to run.

Any other application for which no period of limitation is provided elsewhere in this Division.

Three years

when the right to apply accrues.

The language of Art. 137 also makes it clear that the Article is not confined to the applications under the Code of Civil procedure. Though there was a conflict of opinions among the Courts in this country as to the applicability of the Article to applications filed under provisions other than the Code of Civil Procedure, the controversy was set at rest by the apex Court of the country in The The Kerala State Electricity Board, Trivandrum Vs. T.P. Kunhaliumma, . The law is stated in unmistakable terms in paragraph 18, 21 and 22 of the Judgment, which are extracted hereunder:

The alteration of the Division as well as the change in the application in Art. 137 of the Limitation Act 1963 compared with Art. 181 of the 1908 Limitation Act shows that applications contemplated under Art. 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 Art. 137 cannot be said on the principle of ejusdem generies to be application under the CPC other than those mentioned in Part I of the third Division. Any other application under Art. 137 would be petition or any application under any Act. But it has to be an application to a Court for the reason that S. 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when Court is closed and extension of prescribed period if applicant or the appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application during such period.

X X X

The changed definition of the words ''applicant'' and ''application'' contained in S. 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 Art. 181 of the 1908 Limitation Act on the principles of ejusdem geuerise is not applicable with regard to Art. 137 of the 1963 Limitation Act. Art. 137 stands in isolation from all other Articles in Part I of the third division. This Court in Nityananda, M. Joshi and Others Vs. Life Insurance Corporation of India and Others, , has rightly thrown doubt on the two Judge Bench decision of this Court in Town Municipal, Council, Athani Vs. The Presiding Officer, Labour Courts, Hubli and Others etc., , where this Court construed Art. 137 to be referable to applications under the Civil Procedure Code. Art. 137 includes petitions within the word ''applications''. These petitions and applications can be under any special Act as in the present case.

The conclusion we reach is that Art. 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 Town Municipal, Council, Athani Vs. The Presiding Officer, Labour Courts, Hubli and Others etc., and hold that Art. 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 Art. 137 of the 1963 Limitation Act.

After the pronouncement of the Supreme Court, it will be futile to contend that Art. 137 does not apply to applications for probate, Letters of Administration etc. Whatever may be the nature of the proceeding, so long as it is an application to a Court, it will be governed by Art. 137 of the Limitation Act. No authority has been placed before me taking a contrary view. The judgment of the Patna Bench in Ramanand Thakur Vs. Parmanand Thakur, on which reliance is placed by the plaintiff is also on the footing that Art. 137 of the Limitation Act will apply to an application for grant of probate or Letters of Administration. But, the Bench proceeded to hold that in the case of an application for grant of probate or Letters of Administration, it is difficult to find out when the right to apply accrues and unless that date can be fixed, there is no question of starting of the period of limitation. With respect to learned Judges who constituted the Bench, I do not agree. There can be no question of any difficulty at all in finding out as to when the right to apply accrues in any case. Even if there is any difficulty in fixing the date that will not take away the application from the purview of the Article which has been held to apply to the application. In so far as column (3) of the Article is concerned, the Court has to decide on the facts and circumstances of each case as to when the right to apply for the relief prayed for in the application accrued to the applicant therein. It has been repeatedly held that for the purposes of the third column, the relevant date is the date on which the right accrued for the first time.

In Hari Mohan Dalal and Another Vs. Parameshwar Shau and Others, a Special Bench of the Calcutta High Court including Rankin, C.J., held that the language of the third column of the Schedule should in general, if not indeed always, be so interpreted as to carry out the true intention of the legislature, that is to date the cause of action from the date on which the remedy is available to the party. The Bench referred to the decisions of this Court in Rungiah Gounda & Co., v. Nanjappa Row ILR 26 Mad 780, and in M. Vittil Setti v. Kunhi Pathumal ILR 40 Mad 1040, in support of the proposition. The following passage in the judgment of the Special Bench places the matter beyond any doubt:

In Art. 181 the legislature makes provision not for one definite type of cases but for an unknown number of cases of all kinds. The provision which it makes is specific as regards the period of limitation but as regards the terminus a quo it is content to state in general language and quite simply the fundamental principle that for the purposes of any particular application time is to run from the moment at which the applicant first had the right to make it.

In Mt. Bhagwati Vs. Sant Lal, a Division Bench of the Allahabad High Court construed the expression "when the right to apply accrues", in the article to mean "when the right to apply first accrues". The Bench observed as follows:--

There is a current of authority in support of the view that the expression ''when the right to apply accrues'' means ''when the right to apply first accrues'' and this view is reinforced by the observations of their Lordships of the Privy Council made in Lasa Din v. Md. Gulab Kunwar 1932 A.L.J. 913 at p. 919, where their Lordships remarked that;

If in the Indian cases the question were ''when did the mortgagee''s cause of action arise?'' i.e. when did he first become entitled to sue for the relief claimed by his suit their Lordships think that there might be much to be said in support of the Allahabad decisions.

If the terminus a quo be the date when the cause of action arises, there is no doubt that it will be the date on which the plaintiff would first become entitled to sue. As was observed by Sir Shah Sulaiman in Ram Prasad Ram v. Jadumandan Upadhia 1939 A.L.J. 772 at p. 777.

The expression ''the right to apply accrued'' is more emphatic than the expression ''the cause of action arises''.

and

If the date when the cause of action arises is to be considered the first date when one becomes entitled to sue for the relief claimed by him, then the date when he becomes entitled to apply is certainly the date when the right to apply by way of enforcing the default clause accrued to the mortgagee when on the first occasion there was a default. . .

It may be that in a particular case the plaintiff may not make an application on the first occasion that he became entitled to make one, but that would not prevent the limitation running against him, which depends upon the time of accrual of the right to make an application. The limitation does not depend upon the forbearance on the part of the plaintiff to exercise his right but upon the date of the accrual of that right and, therefore, it cannot remain suspended by reason of any omission or forbearance on the part of the plaintiff. Reference may be made to the case in Madho Ram v. Nihal Singh 38 All. 21, wherein the case of an application for preparation of a final decree, a Bench of this Court consisting of Sir Pramda Charan Banerji and Rafiq, JJ., held that limitation should be computed from the time when the right to apply first accrued. This case was followed by a Bench of the Calcutta High Court in Akshyakumar Ray v. Abdul Kader Khan 57 Cal. 880, in which the learned Judge observed that it is settled that in a case to which Art. 181, Limitation Act, is applicable, the time runs from the date the right to apply first accrues.

The Bench also relied upon the observations of Rankin, C.J., in Hari Mohan Dalal and Another Vs. Parameshwar Shau and Others, which were extracted by me above.

For holding that an application for probate or Letters of Administration is not governed by any Article of the Limitation Act, the Patna Bench in Ramanand Thakur Vs. Parmanand Thakur, relies on the observations on Muttusami Ayyar, J in Gnanamuthu Upadesi''s case ILR 17 Mad. 379 and observe that the right to apply for a probate accrues from day to day so long as the will remains unprobated and the cause of action for the application for probate arises every moment.

I am afraid, there is a fallacy in the reasoning. The word used in the third column is ''accrues''. The term ''accrue'' has been defined in the Oxford Dictionary as to arise or spring as a natural growth or result; to grow, grow up. A right which has accrued cannot be said to accrue every day until it is exercised. In the absence of a provision for limitation, every right will continue to subsist till it is actually exercised. For example, a creditor has a right to recover the money due to him from his debtor. His right continues to exist so long as the debtor does not repay. If there is no provision in the Limitation Act prescribing a time limit for instituting a proceeding for recovery of the money due to the creditor, the creditor can file a suit or other proceeding at any time he chooses. In that case also it can be said that his right to recover the money arises every day. But, the Limitation Act has prescribed a period within which the creditor is bound to file a suit for recovery of the money and by the third column in the Schedule, the relevant date from which the limitation begins to run is also fixed by the statute. Similarly, in the case of a trespass, the owner of the property has a right to recover possession. The commencement of the right was on the date of trespass. It will never end if there is no provision in the Limitation Act prescribing a period of Limitation for instituting a proceeding for recovery of possession. In that case also it can be said that his right to recover possession arises from day to day and every moment so long as the trespasser continues to be in possession. Hence, it will be fallacious to keep out a particular type of application from the scope of Art. 137 of the Limitation Act on the basis of the reasoning that the right to apply accrues from day to day and every moment. If on a reference to the language in the third column, the date on which the right to apply accrues for the first time is fixed, then the right comes to an end at the end of three years therefrom. There can be no escape from that position.

The probable reason for which the statutes of limitation passed in the 19th century excluded from their purview the proceedings for probate or Letters of Administration etc., as suggested by Muttusami Ayyar, J. is caught hold of by the Patna Bench in Ramanand Thakur Vs. Parmanand Thakur, as well as a single Judge of the Bombay High Court in a later case, to which I will refer presently. I have already referred to the fact that the question which arose before the great Judge did not turn on the interpretation of column 3 of the Schedule. Having found that the provisions of the entire Act as it stood then exempted applications for probate from the operation thereof, the learned Judge in his wisdom ventured to give a reason which could have probably prompted the Legislature to make such an exemption. It should not also be forgotten that the observation made by the learned Judge is applicable only to an application for probate at the instance of an executor. The position with reference to an executor does not arise for my consideration in the present case. The discussion of the question in this case confines itself to applications for Letters of Administration. A legatee who applies for Letters of Administration can by no stretch of imagination be compared to a trustee or be called a testamentary trustee. It cannot be said that he is seeking permission of the Court to perform a duty created by the will for, no duty is imposed upon the legatee by the will. Even if it is so, the application to this Court is one for grant of Letters of Administration with the will annexed. The right to apply for the said relief accrued in favour of the applicant more than a decade before the presentation of the application. On the facts of this case, the relevant dates have already been set out and for the purpose of convenience, they are repeated here. The testator died on 12-2-1944. The two executors appointed under the will died before 1970 (the exact date does not appear in the records). The first beneficiary Rajambal died on 27-3-1970. Even assuming that the right of the plaintiff to apply for Letters of administration did not accrue on any earlier date, it cannot be denied that it accrued on 27-3-1970, on the death of Rajambal. Even if it can be said by any process of reasoning of which I am not aware, the right to apply did not accrue on that date, the date could not be later than 1-10-1973 when the plaintiff''s brother Nithyanandham sold the property to defendants 4 and 5. The plaintiff, who was aware of the fact, filed a suit in the City Civil Court in 1974 and the claim put forward by her under the will was contested immediately in 1976 by the defendants therein. In spite of that, the plaintiff did not choose to present the application for probate till 9-11-1983. Unless the Court closes its eyes to the provisions of Art. 137 of the Limitation Act and ignores the same altogether, the present proceeding instituted by the plaintiff cannot be held to be in time.

There is a judgment of a single Judge of the Bombay High Court which was not cited by either counsel in this case. That is a decision by Lentin, J., in Vasudev Daulatram Sadarangani Vs. Sajni Prem Lalwani, . The learned Judge held that under the Limitation Act 1963, no period is advisedly prescribed within which a petition for probate or Letters of administration or succession certificate must be made and that the right to apply under Art. 137 of the Act would accrue when it becomes necessary to apply which need not necessarily be within three years from the date of death of the deceased. It is seen that paragraphs 13 to 16 of the judgment are alone approved for reporting by the Bombay High Court and they alone find a place in the report. Hence, it is not possible to know the facts of the case, particularly as to whether the application before the learned Judge was one for probate or letters of administration. The Learned Judge drew inspiration from the judgment of Muttusami Ayyar, J. in Gnanamuthu Upadesi�s case ILR 17 Mad. 379, and took the view that the right to apply may accrue as and when it becomes necessary to apply. With respect to the learned Judge, I do not know how the proposition laid down by the Learned Judge flows from the observation made by Muttusami Ayvar, J. in Gnanamuthu Upadesi''s case ILR 17 Mad. 379. The reasoning is also not correct. The decision of the Supreme Court in The Kerala State Electricity Board, Trivandrum Vs. T.P. Kunhaliumma, was brought to the notice of the Learned Judge. Yet, he took the view that the observations made by the Supreme Court will have nothing to do with the exercise of a continuous right of an executor seeking the Court''s permission to perform the duties cast on him by the will. If the case before the Learned Judge related to an application for probate by an executor, I will have nothing to do with it. As stated already, I am not called upon to decide in this case, the question of limitation for filing an application for probate by an executor. If the judgment of Lentin, J. pertained to an application for letters of administration, I express my dissent with the view taken by the learned Judge. In my opinion, the Judgment runs counter to the ruling of the Supreme Court in the The Kerala State Electricity Board, Trivandrum Vs. T.P. Kunhaliumma, .

In the case in the matter of the Estate of Late Shri Gurcharan Dass Puri AIR 1987 P&H 122, Gupta, J. considered the question in detail and held that Art. 137 of the Limitation Act governs an application for grant of letters of administration and that the right to apply accrues on the death of the owner of the estate. The Learned Judge held that an application for probate by an executor will stand altogether on a different footing than an application for obtaining letters of administration. The learned Judge made a reference to the Judgment of the Patna Bench in Ramanand Thakur Vs. Parmanand Thakur, and the Judgment of Muttusami Ayyar, J. in Gnanamuthu Upadesi''s case ILR 17 Madras 379. The Learned Judge observed as follows:

. . .Thus, from the said observations, it is quite evident that the application for obtaining the probate of a will stands altogether on a different footing than the application for obtaining the letters of administration as such without any probate. In these circumstances, I am of the considered opinion that Art. 137 of the Limitation Act, 1963, governs the petition in the present case and that the right to apply for obtaining the letters of administration accrued on the death of Shri C.R. Puri, whose estate is in question on Nov. 23, 1963. In any case even if it be assumed for the sake of arguments that there was any agreement between the parties as annexed to Annexure ''A'' to the application, even then the present petition filed on May 4, 1984, was clearly barred by time.

In that case, there was no will but a family arrangement was sought to be projected as a will. There is no difference between an application for grant of Letters of Administration with the will annexed or without a will in so far as the question of limitation is concerned.

In In the matter of the last will and testament of VS. Ranganathachariari OP. 133 of 1989 order dated 24-8-1989 . Abdul Hadi, J. considered a petition for grant of Letters of Administration with the will. As seen from the facts of the case, there was no contest. The petitioner in that case was the sole legatee under the will and the other heirs of the deceased had filed consent affidavits. Even though there was no contest by any party, the Learned Judge called on counsel appearing in the case to argue the question of limitation His attention was drawn to the decision of the Patna High Court in Ramanand Thakur Vs. Parmanand Thakur, , and the Judgment of the Punjab and Haryana High Court in the matter of Estate of Shri Gurcharan Dass Puri AIR 1987 P&H 122. He accepted the reasoning of the Patna Bench and took the view that the Punjab and Haryana High Court was of the same opinion. He did not notice the distinction made by Gupta, J., in the later case between applications for probate and applications for letters of administration. I do not think it necessary to make a reference to a Division Bench in this case even though I am taking a view different from that of Abdul Khadi, J. in view of the fact that the case before Abdul Hadi, J. was an uncontested one and all the parties had consented for the grant of letters of administration.

The Indian Succession Act makes a distinction between probate and Letters of Administration. Under S.222 of the Act, probate shall be granted only to an executor appointed by the will and the appointment may be expressed or by necessary implication. The reasoning of Muttusami Iyyar, J. that an application for probate is in the nature of an application for permission to perform a duty created by a will may apply to an executor. That reasoning will not govern a legatee who applies for letters of administration with the will.

Reliance was placed by the plaintiff on the provisions of O.25, R.9 of the Original Side Rules. The rule is in the following terms:--

In any case where probate or letters of Administration is for the first time applied for after the lapse of three years, from the death of the deceased, the reason for the delay shall be explained in the petition.

The rule remains unamended even after the passing of the Limitation Act 36 of 1963. In any event, a provision in the Original Side rules cannot override the provision in the Limitation Act. Once it is held that Art. 137 of the Limitation Act will apply and the present proceeding is barred by time, O.25, R.9 of the Original side Rules will not help the plaintiff in any manner.

Hence, I hold that the petition for grant of letters of administration is barred by limitation. Consequently, this suit T.O.S. No. 23 of 1985 has to be dismissed as barred by limitation and it is hereby dismissed. There will be no order as to costs.

Application No. 3693 of 1989 is dismissed as unnecessary in view of the dismissal of the suit. It is made clear that the order of stay granted by the order dated 1-10-1985 in Application No. 250 of 1985 will cease to be in force as the main suit has been dismissed. There will be no order as to costs. In so far as Application No. 181 of 1988 is concerned, that has also become unnecessary in view of the dismissal of the suit. It should, however, be pointed out that under O.33, R.5(d-1), code of Civil Procedure, the Court shall reject an application for permission to sue as an indigent person where the suit is barred by any law. As I have held that the suit is barred by limitation, the application for leave to continue the suit as an indigent person has to be dismissed and on that ground, the order of the Master deserves to be set aside. Hence, the order of the Master dated 17-6-1967 is set aside and the Application No. 181 of 1983 is allowed. There will be no order as to costs.