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Ramesh Nivrutti Bhagwat vs Surendra Manohar Parakhe on 4 October, 2019

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1399 OF 2010

RAMESH NIVRUTTI BHAGWAT …APPELLANT

VS.

DR. SURENDRA MANOHAR PARAKHE …RESPONDENT

JUDGMENT

S. RAVINDRA BHAT, J.

1. This appeal by special leave questions the decision of the

Bombay High Court affirming the rejection of an application for

revocation of letters of administration granted to the respondent,

(hereafter “the LOA holder”), in respect of the will of deceased Mrs.

Antoinette Bendre Bhagwat (hereafter “Antoinette”).
Signature Not Verified

Digitally signed by
MANISH SETHI
Date: 2019.10.04
18:32:48 IST
Reason:

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2. Antoinette was the wife of Balaji Balwant Bhagwat (hereafter

“Balaji”). The couple were permanent residents of California, US

and were US citizens. Balaji predeceased Antoinette, bequeathing

all properties to her. She died on 23.1.1981 at Alhambra, Los

Angeles County, California. U.S.A. In her last will dated

24.6.1977, she bequeathed her properties to her husband. The

will stipulated that in the event of Balaji predeceasing her, the

property was to vest in an inter ­ vivos trust. The trust was

created by the testatrix and her husband by a deed dated

24.6.1977. The Executor had filed a petition for probate of

Antoinette’s will (Probate Case No. 662463 in the Superior Court

of the State of California for Los Angeles County). It was probated

on 26.2.1981.

3. On 02.11.1982, Dinkar Sambhaji Patole (hereafter “Patole”)

as constituted attorney of the original executor’s successor,

applied to the Bombay High Court (Petition No. 915/ 1982) for

grant of letters of administration with an authenticated copy of

the will annexed to the petition, in respect of the property and

credit of the deceased, in the State of Maharashtra. Patole died
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during the pendency of proceedings which were continued by Dr.

Surendra Manohar Parakhe who was duly brought on record.

letters of administration were granted by the High Court by order

dated 24.11.1994.

4. Ramesh Nivrutti Bhagwat, the appellant (hereafter

“Ramesh”) claiming to be a relative of Antoinette’s husband, took

out a notice of motion (No. 912 of 1997) in Petition No. 915/ 1982

(i.e. the original administration proceeding). That application

(notice of motion) was allowed to be withdrawn, with liberty to

initiate appropriate proceedings. Ramesh claimed that neither he

nor his father, nor any other family member had notice of the

administration petition. It was alleged that only when the

respondent LOA holder applied for mutation of name of Rural

Gospel and Medical Mission of India, on the basis of the letters

issued by the court, did he come to know about it after making

inquiries in the office of the High Court. Ramesh claimed that on

29.03.1997 he learnt that the respondent had obtained letters of

administration in respect of the will of Balaji by filing another

Petition No. 912/ 97. This was allowed to be withdrawn on
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01.04.1998. He then filed an application for revocation on

29.07.1999.

5. Ramesh alleged that the LOA holder had not complied with

the direction of the court granting letters of administration by

preparing an inventory of the property and credits within six

months, and further that he did not render accounts of the

property and credits within one year. The other allegation was

that letters of administration were obtained by suppression of

material facts and by misleading the Court. The appellant alleged

that his uncle, late Balaji, had established the Bhagwant Mukti

Ashram and the name of the Ashram was mutated in the revenue

records in respect of the property. The testatrix’s will and that of

Balaji clearly showed that their intention was to use the property

for charitable purposes. The appellant Ramesh also alleged that

the Superior Court of California granted probate to John Graf

Klotzle who was named as the successor by the earlier executor

(Carl Kinsinger) and that the said executor appointed the

respondent as his attorney for obtaining letters of administration.

Therefore, it was alleged that the LOA holder was not appointed

executor by the will. It was alleged that the probate was obtained
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from the Superior Court of California without notice to the

petitioner or his father or any other relative. It was alleged to have

been obtained by fraud and suppression of material facts and the

said decision is given contrary to, and ignoring the law in force in

India.

6. The LOA holder opposed the application for cancellation of

probate on several grounds, including that the petition was

barred by the law of limitation, inasmuch as such applications

are covered by SectionArticle 137 of the SectionLimitation Act,1963, and the

petition ought to have been presented within three years. It was

urged that even if the period of pendency of notice of motion were

excluded, the petition for cancellation of probate was barred by

time. It was also urged that the appellant had no locus standi to

apply for revocation of the grant as he had no interest in the

estate of the deceased on intestacy. It was alleged that the letters

of administration granted by the court was an ancillary grant

under Sections 228 and Section271 of the Indian Succession Act, 1925

and could not be revoked as long as the original grant subsisted.
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The Superior Court of California which probated the will followed

the necessary procedure.

7. A learned Single Judge of the Bombay High Court relied on

Rukminidevi v. Narendra Lal Gupta, (1985) 1 SCC 144, to say that

if a party does not contest proceedings for grant of probate, it

cannot be permitted to question the validity of the will by a

collateral attack in different proceedings. The court held that the

grant being in rem, binds not only persons who are parties but

also others who are not parties to the proceedings, whether they

had notice or not. The probate granted by the competent court is

conclusive on the validity of the will unless revoked in accordance

with law, and no evidence can be admitted to impeach it except in

the proceedings for revocation. Thus, since the original probate

granted by the California court was not challenged by appropriate

proceedings and since the probate was in force, there is no

question of revoking an ancillary grant which was merely to give

effect to the original probate of the will granted by the California

court. The Single Judge also held that since the letters of

administration were granted in ancillary proceedings on
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25.11.1994 and the petition for its revocation was filed on

21.7.1999, proceedings were time barred. The Single Judge held

that such proceedings are covered by SectionArticle 137 of the SectionLimitation

Act, 1963, which requires the application to be filed within 3

years from the date when the right to apply accrues. Even if the

period spent on the notice of motion from 29.3.1997 to 1.4.1998

were excluded from consideration, the petition for revocation was

filed beyond the period of three years from 25.11.1994, as the

three year period expired on 24.11.1997, and the revocation

petition was filed on 21.7.1999. The court, after excluding the

period of seven months and two days spent in pursuing the

remedy of notice of motion, held it to be hopelessly barred by

time. The Single Judge also held that the appellant Ramesh was

not an heir of the deceased ­ a fact admitted by him in the

rejoinder affidavit. In view of these facts, the application for

revocation was rejected. Ramesh appealed unsuccessfully to the

Division Bench. The judgment of the Division Bench rejected the

sole contention made in the appeal, that the law prescribed no

limitation for an application of cancellation of letters of

administration.

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8. Learned counsel for the appellant argued that Ramesh had

no notice of the proceedings initiated for grant of letters of

administration and that he and his father (Balaji’s brother)

became aware of the fact only when the properties were sought to

be mutated in the revenue records, pursuant to the letters

granted. It was submitted that the limitation for filing an

application should be calculated from the date of knowledge of the

grant, and not the date of grant.

9. Counsel for the respondent, on the other hand, urged this

court to dismiss the appeal. It was contended that the letters of

administration in respect of the will in question dated 24.06.1977

were granted by the court after due notice and citation;

proceedings for their grant were in rem. Consequently, when

granted, the letters of administration operated against the entire

world. The cause of action, if any, for seeking their cancellation,

therefore, accrued from the date of their grant, and not on the

date of knowledge of grant, in the absence of any allegation of

fraud.

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10. As evident, the appellant’s application for cancellation of the

letters of administration was rejected concurrently. The only

question urged is whether there is any limitation prescribed and if

not, whether the residuary provision (SectionArticle 137 in the schedule

to the SectionLimitation Act, 1963 – hereafter “the Act”) applies and for

which the starting point of limitation is the date of alleged

knowledge of the grant of letters of administration.

11. The relevant provisions dealing with recognition in respect of

grant of probate, of letters of administration in respect of the

probate granted, and cancellation of probate (or letters of

administration) of the SectionIndian Succession Act, 1925, read as

follows:

“Section 228 ­ Administration, with copy annexed,
of authenticated copy of Will proved abroad

When a Will has been proved and deposited in a Court of
competent jurisdiction situated beyond the limits of the
State, whether within or beyond the limits of 1 India, and
a properly authenticated copy of the Will is produced,
letters of administration may be granted with a copy of
such copy annexed.

­­­­­ ­­­­­ ­­­­­­

Section 263 ­ Revocation or annulment for just cause
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The grant of probate or letters of administration may be
revoked or annulled for just cause.

Explanation.—Just cause shall be deemed to exist where—

(a) the proceedings to obtain the grant were defective in
substance; or

(b) the grant was obtained fraudulently by making a false
suggestion, or suggestion, or by concealing from the
Court something material to the case; or

(c) the grant was obtained by means of an untrue
allegation of a fact essential in point of law to justify the
grant, though such allegation was made in ignorance
or inadvertently; or

(d) the grant has become useless and inoperative through
circumstances; or

(e) the person to whom the grant was made has willfully
and without reasonable cause omitted to exhibit an
inventory or account in accordance with the provisions of
Chapter VII of this Part, or has exhibited under that
Chapter an inventory or account which is untrue in a
material respect.

Illustrations

(i) The Court by which the grant was made had no
jurisdiction.

(ii) The grant was made without citing parties who ought
to have been cited.

(iii) The Will of which probate was obtained was forged or
revoked.

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(iv) A obtained letters of administration to the estate of B,
as his widow, but it has since transpired that she was
never married to him.

(v) A has been taken administration to the estate of B as if
he had died intestate, but a Will has since been
discovered.

(vi) Since probate was granted, a latter Will has been
discovered.

(vii) Since probate was granted, a codicil has been
discovered which revokes or adds to the appointment of
executors under the Will.

(viii) The person to whom probate was, or letters of
administration were, granted has subsequently
become of unsound mind.

­­­­­­­­­­ ­­­­­­­­­­­­­ ­­­­­­­­­­­

276. Petition for probate­(1) Application for probate or
for letters of administration, with the Will annexed,
shall be made by a petition distinctly written in English or
in the language in ordinary use in proceedings before
this Court in which the application is made, with the Will
or, in the cases mentioned in Sectionsections 237, Section238 and Section239,
a copy, draft, or statement of the contents thereof,
annexed, and stating—

(a) the time of the testator’s death,

(b) that the writing annexed is his last Will and
testament,

(c) that it was duly executed,

(d) the amount of assets which are likely to come to
the petitioner’s hands, and

(e) when the application is for probate, that the
petitioner is the executor named in the Will.
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(2) In addition to these particulars, the petition shall
further state ­

(a) when the application is to the District Judge, that
the deceased at the time of his death had a fixed
place of abode, or had some property, situate within
the jurisdiction of the Judge; and

(b) when the application is to a District Delegate, that
the deceased at the time of his death had a fixed
place of abode within the jurisdiction of such
Delegate.

(3) Where the application is to the District Judge and nay
portion of the assets likely to come to the petitioner’s
hands is situate in another State, the petition shall further
state the amount of such assets in each State and the
District Judges within whose jurisdiction such assets are
situate.”

12. SectionThe Indian Succession Act, 1925 does not prescribe a

specific period of limitation for the grant of probate, or for moving

an application for cancellation of probate or letters of

administration. The residuary entry SectionArticle 137 of the Act, which

covers proceedings for which no period of limitation is stipulated

in the Act, provides for a three­year period of limitation. SectionArticle

137 reads as follows:

Description Period of Time from which
limitation period begins to
run
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37. Any other Three years When the right to
application apply accrues
for which no
period of
limitation is
provided
elsewhere in this
Division.

13. This issue was considered in SectionKunvarjeet Singh Khandpur v.

Kirandeep Kaur Ors., (2008) 8 SCC 463. This court negatived

the plea that since the Act prescribes no period of limitation in

regard to matters concerning grant of probate or letters of

administration, there is no time limit. The court followed the

decision in the SectionKerala State Electricity Board, Trivandrum v. T.P.

Kunhaliumma, (1977) 1 SCR 996 which took note of the change

in the collocation of words in SectionArticle 137 of the SectionLimitation Act,

1963 compared with SectionArticle 181 of the SectionLimitation Act, 1908, and

held that applications contemplated under SectionArticle 137 are not

applications confined to the Code of Civil Procedure, 1908. In the

older SectionLimitation Act of 1908, there was no division between

applications in specified cases and other applications, as in the
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SectionLimitation Act, 1963. The court held in Kerala State Electricity

Board (supra) that:

“The words “any other application” under SectionArticle 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 SectionArticle 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 SectionLimitation 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.

­­­­­­­­ ­­­­­­ ­­­­­

22. The conclusion we reach is that SectionArticle 137 of the
1963 SectionLimitation 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 SectionArticle 137 of the 1963 SectionLimitation
Act is not confined to applications contemplated by
or under the Code of Civil Procedure.”

14. Applying the ratio in Kerala Electricity Board (supra), the

court, in Kunvarjeet Singh Khandpur (supra) observed that:

“the crucial expression in the petition is “right to
apply”. In view of what has been stated by this
Court, SectionArticle 137 is clearly applicable to the petition
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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.

15. Recently, in SectionSameer Kapoor and Another v. State through

Sub­Divisional Magistrate South, New Delhi and Others, 2019

Online SCC 630 (SC), the context was slightly different; the

probate was issued by a foreign court. The executor sought

letters of administration in an Indian court (like in the present

case), under Section 228. The court dealt with the objection of

limitation, and noticed, firstly, that Kunvarjeet Singh Khadapur

(supra) had ruled about applicability of SectionArticle 137 for grant of

probate in the first instance. Drawing a distinction from the grant

of probate (or letters of administration) and the recognition of

that, under Section 228, the court (in Sameer Kapoor (supra))

held as follows:

“it can be said that 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
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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. That the proceedings filed for grant of
probate or letters of administration is not an action
in law but it is an action in rem. As held by this
Court in the case of Kunvarjeet Singh Khandpur
(supra), an application for grant of probate or letters
of administration 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.”

16. The decision in SectionLynette Fernandes v. Gertie Mathias, (2018)

1 SCC 271, dealt with the precise issue of the period of limitation

applicable for an application for cancellation of a probate or

letters of administration. This court held as follows:

“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 SectionArticle 137 of the SectionLimitation 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 our
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considered opinion, three years limitation as
prescribed Under SectionArticle 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 un­
challenged 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.”

17. In the present case, the letters of administration were

granted in ancillary proceedings on 25.11.1994. The High Court

took note of the fact that the notice of motion (in the disposed of

proceeding) was filed on 29.03.1997; it was withdrawn on

01.04.1998. The petition for revocation of the letters of

administration were filed on 29.7.1999. Proceedings were clearly

time barred, given that the original grant of the ancillary letters

took place on 25.11.1994; they constituted notice to all

concerned. Clearly, the petition for revocation of letters of

administration was time barred. It is accordingly held that there
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is no infirmity in the concurrent findings impugned; the appeal

fails and is dismissed with no order as to costs.

………………………………….J.
[ARUN MISHRA]

………………………………….J.
[VINEET SARAN]

………………………………….J.
[S. RAVINDRA BHAT]

New Delhi,
October 04, 2019.

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