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Gnanamuthu Upadesi and Vs. Vana Koipillai Nadan - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Judge
Reported in(1894)ILR17Mad379
AppellantGnanamuthu Upadesi And; Aseervadham
RespondentVana Koipillai Nadan
Cases ReferredBai Manekbai v. Manekji Kavasji I.L.R.
Excerpt:
limitation - limitation act, schedule ii, article 178--applications for probate. - .....in the case before him the proceedings had begun and must, therefore, be governed by the code of civil procedure and the limitation act. from this order civil miscellaneous appeal no. 130 of 1892 has been preferred.4. civil miscellaneous appeal no. 139 of 1892.--the judge's order in dismissing the second application for probate on the application of 10th march 1892 is clearly bad in law. it was a fresh application for probate, and the judge was in error in not treating it as such. it was pointed out in janaki v. kesavalu i.l.r. 8 mad. 207 so early as november 1884, that the limitation act was not intended to apply to an application for probate, an application under the religious endowments act, an application for a certificate to collect the debts, an application for the appointment of.....
Judgment:

Muttusami Ayyar, J.

1. These appeals have been preferred from two orders passed in connection with a previous order made on an application for probate, which was registered as Certificate Case No. 9 of 1892 on the file of the District Court of Tinnevelly. The facts of the case, in so far as they relate to that application, are shortly these. A lady at Tuticorin called Ponniya Muthu Nadathi died on the 12th June 1891. Appellant is her father and respondent is her husband. The former applied for probate, alleging that she had left a will and appointed him executor, but the latter contended that the alleged will was a forgery and repudiated appellant's claim to probate. He urged further that she died intestate leaving a son surviving her, though he survived her but for three months, and that respondent was entitled to letters of administration in regard to her estate. But when the application for probate came on for disposal on the 16th February 1892, as the appellant's vakil stated that he had no instructions, the application was dismissed with costs. No appeal was preferred from the order of dismissal.

2. But on the 10th March 1892 appellant made another application for probate to the District Court. The Judge held that there must first be a petition asking, for reasons stated, that the order on Petition No. 9 of 1892 should be set aside or reviewed, and on the ground that no such petition had been presented; he dismissed the second application for probate with costs on the 7th April 1892. From this order appellant has preferred Civil Miscellaneous Appeal No. 139 of 1892.

3. On the 29th April 1892 appellant made an application to the District Court praying that the order of the 16th February 1892 be set aside and the original application for probate be restored to the file. On the 29th July 1892 the Judge dismissed this application as barred. He observed that the rulings in Janaki v. Kesavalu I.L.R. 8 Mad. 207 Ishan Cunder Roy in re I.L.R. 6 Cal. 707 and Bai Manekbai v. Manekji Kavasji I.L.R. 7 Bom. 213 did not apply, as in all these cases the limitation was merely held not to apply to the institution of proceedings, and that in the case before him the proceedings had begun and must, therefore, be governed by the Code of Civil Procedure and the Limitation Act. From this order Civil Miscellaneous Appeal No. 130 of 1892 has been preferred.

4. Civil Miscellaneous Appeal No. 139 of 1892.--The Judge's order in dismissing the second application for probate on the application of 10th March 1892 is clearly bad in law. It was a fresh application for probate, and the Judge was in error in not treating it as such. It was pointed out in Janaki v. Kesavalu I.L.R. 8 Mad. 207 so early as November 1884, that the Limitation Act was not intended to apply to an application for probate, an application under the Religious Endowments Act, an application for a certificate to collect the debts, an application for the appointment of new trustees, and similar applications. It was also explained in the case of Bai Manekbai v. Manekji Kavasji I.L.R. 7 Bom. 213 and in re Ishan Chundur Roy I.L.R. 6 Cal. 707 that Article 178 of Schedule II of Act XV 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 Article 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. The order of the Judge on the application of the 10th March 1892 is set aside, and he is directed to restore the application for probate to his file and to dispose of it on the merits in accordance with law. Respondent will pay appellant's costs in this Court.

5. Civil Miscellaneous Appeal No. 130 of 1892.--The order of the Judge cannot be supported. It is wrong, because when the appellant was legally entitled to make a second application on the 10th March 1892, it was not competent to the Judge to impose a restriction upon appellant's right and to direct that he should make an application under the Code of Civil Procedure, so as to let in the law of limitation and indirectly to defeat the object of the legislature in exempting applications for probate from the Act of Limitations. The Judge is also in error in construing Section 261, which only renders the provisions of the Code of Civil Procedure as nearly as may be so as to let in the limitation bar, from which applications for probate are saved.

6. This order must be, and is hereby, set aside, as both appeals were heard at the same time, and as the same vakils appeared in both, there would be no order for costs in this appeal.


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