1 to 12. (Are not relevant for this report.)
13. Coming to the aspect of limitation, Mr. Dalapatrai urged that by virtue of the residuary Art. 37 of the Limitation Act, the petition is barred by limitation as it was not filed within 3 years from the date of the deceased's death on 3rd Jan., 1974. which according to Mr. Dalapatrai was that starting point when the petitioner's right to apply accrued.
14. This contention is fallacious. The Schedule to the Limitation Act is divided into three divisions. The Third Division pertains to application and consists of two parts, the first part being 'APPLICATIONS IN SPECIFIED CASES' and the second part being 'OTHER APPLICATIONS' under which Art. 137 falls. It reads thus :--
'137. Any other application Three years When the right to applyfor which no period of accrues.'limitation is provided elsewhere in this Division.
The basic question that arises is whether the 3-year period must be computed from the date of the deceased's death as urged by Mr. Dalapatrai. Under the Limitation Act, no period is advisedly prescribed within which a petition for probate or letters of administration or succession certificate must be made after the deceased's death. There is no warrant for the assumption that the right to apply envisaged in Art. 137 necessarily accrues on the date of the death of the deceased. Such an application is to seek the Court's imprimatur to perform a duty created by a Will or for recognition as a testamentary trustee. The right to apply is a continuous right which is capable of being exercised as long as the object of the trust exists or any part of the trust, if created, remains to be executed. Gnanamuthu Upadeshi v. Vana Koilpillai Nadan ILR (1894) Mad 379 (381. Being a continuous right, it can be exercised at any time after the death of the deceased, as long as the right to do so exists. The right to apply may therefore accrue not necessarily within 3 years from the date of the deceased's death but when it becomes necessary to apply, which may be any time after the death of the deceased, be it after several years. Of course it need hardly be emphasised that delay in making the application must rightly give cause for suspicion and greater the delay the stronger would be the suspicion. The petitioner must explain the delay, as for instance in Kalidas Chuckerbutty v. Ishan Chunder Chuckrebutty 9 C WN 49 , where the delay was explained by the fact that there was no very urgent necessity for taking out probate, the estate itself being of trifling value. For that matter, provisions for explaining delay in making the application beyond 3 years of the deceased's death is to be found in R. 382 of the High Court Rules. The 3-year period is presumably on the assumption that the necessity to make the application would ordinarily arise within that time. If the necessity arises thereafter, delay must, as stated earlier be explained to the satisfaction of the Court. Delay cannot be equated with the absolute bar of limitation. Once execution and attestation of the Will are proved, the suspicion of delay in making the application no longer operates. Mahindra v. Mahaluxmi Bank, . In para 10 of the petition the petitioner has explained that the cause of the delay was the filing of the partition suit by the caveatrix, which is still pending. The only reply in the caveatrix's affidavit is a bare avernment that this cannot be a ground for condonation. It is obvious that the petitioner did not find it necessary to exercise the continuous right vested in him by law to make the present application until the caveatrix filed her suit on 18th Jan., 1977.
15. Reliance was placed by Mr. Dalapatrai on the observations in Kerala State Electricity Board v. T. P. Kunhaliumma, : 1SCR996 (which was a case under Section 16(3) of the Telegraph Act claiming enhanced compensation), that the words 'any other application' in Art. 137 would be a petition or any application under any Act. Those observations must be read in the light of the facts in that case, which 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.
16. Rejecting Mr. Dalapatrai'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 form the date of he 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.
17 and 18. [x x x x]
19. Ordered accordingly.