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Kalinath Chatterjee Vs. Nagendra Nath Chatterjee - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 146 of 1955
Judge
Reported inAIR1959Cal81,62CWN791
ActsSuccession Act, 1925 - Section 276; ;Limitation Act, 1908 - Section 29 - Schedule - Articles 158, 178 and 181
AppellantKalinath Chatterjee
RespondentNagendra Nath Chatterjee
Appellant AdvocateAtul Chandra Gupta, Amicus Curiae;Jitendra Kumar Sen Gupta and ;Arun Kishore Das Gupta, Advs.
Respondent AdvocateManomohan Mukherjee, Adv.
DispositionAppeal dismissed
Cases ReferredKhagaswar Sarma v. Someswar Bhattacharya
Excerpt:
- .....nadan, ilr 17 mad 379 (h), mr. justice muttusami ayyar held that the limitation act does not apply to applications for probate, and the applications referred to in article 178 of schedule ii of that act which corresponds to article 181 are applications under the code of civil procedure. in the course of his judgment mr. justice muttusami ayyar made these significant observations :'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.....
Judgment:

S.R. Das Gupta, J.

1. This is an appeal against an order of the Subordinate Judge. Third Court, Alipore, granting probate of the Will of one Kedar Nath Chatterjee deceased. The only ground urged before us in support of this appeal was that the application for probate was barred by the law of limitation. It should be noted that the Will in question was executed on the 30th May, 1925. The testator died on the 30th October 1931. The present application for probate was made on the 17th March, 1933.

2. Mr. Sen Gupta, in support of his contention, namely, that the application for probate, at the time when it was made, was barred by the law of limitation, urged that Article 181 of the Limitation Act would apply to an application for probate. Mr. Sen Gupta also contended that if we hold that an application for probate is to be regulated by the provisions of the Code of Civil Procedure even then Article 181 of the Limitation Act would be applicable to such application.

3. Article 181 of the Limitation Act reads as follows:

'Application for which no period of limitation is provided elsewherein this schedule or by section 48 of the Code of Civil Procedure, 1908.Three years.When the right to apply accrues.'

In answer to Mr. Sen Gupta's contention as aforesaid Mr. Gupta, who was requested by us to argue this point as amicus curiae, submitted in the first place that Article 181 of the Limitation Act would not apply to an application for probate. He contended that the said Article applied only to applications made under the Code of Civil Procedure and to applications for the making of which the Code of Civil Procedure was the authority. Mr. Gupta in the next place submitted before us that even if we hold that Article 181 of the Limitation Act was applicable to an application for probate the question which still remains to be decided is when the right to make such an application would accrue, because, the period of limitation under that Article would be 3, years from the time when the right to apply accrued. He submitted that the right of an executor to apply accrues from day to day and continues so long as the Will remains unprobated. Mr. Gupta further contended before us that an application for probate is regulated by a special Act, that is, Succession Act and he drew our attention to Sections 268, 275 and 276 of the said Act, particularly, to Section 276 thereof, which lays down the particulars which have to be set out in an application for probate and for letters of administration. The provisions in Section 276 of the Succession Act, according to Mr. Gupta, stand in sharp contrast with the material provisions of the Code of Civil Procedure which lays down the particulars necessary to be set out in a plaint. For that purpose he referred us to Order 4, Rule 1 and Order 7, Rules 1 and 6 and contended that in an application for probate or letters of administration it was not necessary to set out when the cause of action arose, the unprobated Will being the cause of action in such cases, whereas in proceeding instituted by means of a plaint under the Code of Civil Procedure it was necessary to state the facts constituting the cause of action and when it arose. This difference, according to Mr. Gupta, supports his contention that the right to apply for probate arises from day to day so long as the Will remains unprobated. Mr. Gupta also referred us to the decision of the Privy Council in the case of Manindra Chandra v. Mahaluxmi Bank Ltd. . In that case the death of the testator took place on the 1st January, 1904, hut the application for probate was made on the 9th November, 1936. Mr. Gupta relied on a passage in the judgment in the said case, wherein it was observed that on the question of delay their Lordships agreed with the trial Judge that the necessity for probate did not arise till after the death of the widow, who had made no adoption. Thus, Mr. Gupta contended, there was no limitation for an application for probate and all that was necessary to be done was-to explain away the delay which might have happened in applying for probate.

4. On the question as to whether or not an application for probate comes within Article 181 of the Indian Limitation Act, there is a large body of decisions which have taken the view that Article 181 of the Indian Limitation Act is confined to applications under the Code of Civil Procedure. Two of those decisions namely In the matter of Ishan Chunder Roy, ILR 6 Cal 707 (B) and Bai Manekbai v. Manekji Kavasji, ILR 7 Bom 213 (C) relate to application for probate. It was held in those cases that Article 181 of the Limitation Act is confined to applications under the Code of Civil Procedure, and do not apply to an application for probate. The main reason for those decisions was that on examination of the Articles in the First Schedule in the Limitation Act it appeared that in every one of them the application was made under the Code of Civil Procedure and applying the doctrine of ejusdem generis the application which is contemplated in Article 181 of the Limitation Act must be confined to the same type of applications which are contemplated in the other Articles in the Schedule, that is to say, applications under the Code of Civil Procedure. Mr. Sen Gupta contended before us that although this was the position before the Limitation Act came to be amended in 1940, whereby Articles 158 and 178 of the Indian Limitation Act were made applicable to certain proceedings under the Arbitration Act, after the said amendment the basis of those decisions no longer exists. In other words, his contention was that after the said amendment it can no longer be said that the doctrine of ejusdem generis would apply to the residuary Article, that is Article 181 of the Limitation Act or that applying the said doctrine, Article 181 must be held to apply only to applications under the Code of Civil Procedure. The position according to him has undergone a change and the First Schedule no longer contains merely applications under the Code of Civil Procedure but now includes applications-under the Indian Arbitration Act as well.

5. It must be conceded that the view urged before us by Mr. Sen Gupta, namely, that after the Limitation Act comes to be amended in 1940 the reasons on which the said earlier decisions were based can no longer be said to exist, was the view taken by Mr. Justice G.N. Das and Mr. Justice Guha in the case of Panchanan Pal v. Nani Gopal Niyogi, ILR 1951-1 Cal 438 (D) and by myself in the case of Shah and Co. v. Ishar Singh Kirpal Singh and Co., : AIR1954Cal164 (EX G.N. Das J. in delivering judgment in the said case of Panchanan Pal v. Nani Gopal Niyogi (D) observed as follows :

'In a large majority of cases it was decided by this Court and other High Courts that Article 181 of the Indian Limitation Act governs applications which are contemplated by the Code of Civil Procedure. The decisions, however, are not uniform. There are instances in which applications under other Acts have been held to be governed by Article 181. See the case of Asmatali Sharip v. Muja-harali Sardar, ILR (1948) 2 Cal 54 : 52 Cal WN 64 : (AIR 1948 Cal 48) (F), where Article 181 was made applicable to proceedings under Section 26-F of the Bengal Tenancy Act. But since the passing of the Arbitration Act in 1940, it is difficult to say that Article 181 is confined to applications under the Code of Civil Procedure. Schedule 4 of the Arbitration Act, 1940, amended Section 158 and Section 178 of the Indian Limitation Act and made those Articles applicable to certain proceedings under the Arbitration Act. The basis of the decisions, which held that Article 181 governs only applications under the Code of Civil Procedure, has been taken away as a result of the said amendment of the Arbitration Act.'

The same view was taken by me in the case of : AIR1954Cal164 , although the decision of G.N. Das and Guha JJ. referred to above was not cited before me. I also held that the reason which was the basis of all the previous decisions is no longer applicable and it cannot now be said that applying the doctrine of ejusdem generis the residuary Article must be held to apply only to applications under the Code of Civil Procedure. It should be noted that the case of Panchanan Pal v. Nani Gopal Niyogi (D), decided by Das and Guha JJ. and the case of : AIR1954Cal164 decided by myself both related to applications under Section 33 of the Indian Arbitration Act, but the principle laid down therein would be applicable to other cases including an application for probate. Left at this position the contention of Mr. Sen Gupta should be held to be correct but our attention was drawn to the decision of the Supreme Court in the case of Sha Mulchand and Co. Ltd. v. Jawahar Mills Ltd., Salem, : [1953]4SCR351 and to the view expressed by their Lordships in the said case. This decision of the Supreme Court was not cited before me at the hearing of the said case of : AIR1954Cal164 , and my attention was not drawn to it. His Lordship Mr. Justice Das, as then was, of the Supreme Court, while dealing with the self-same contention which is now urged before us in his judgment observed as follows :

'This long catena of decisions may well be said to have, as it were, added the words 'under the Code' the first column of that Article. If those words had actually been used in that column then a subsequent amendment of Articles 158 and 178 certainly would not have affected the meaning of that Article. If, however, as a result of judicial construction, those words have come to be read into the first column as if those words actually occurred therein, we are not of opinion, as at present advised, that the subsequent amendment of Articles 158 and 178 must necessarily and automatically have the effect of altering the long acquired meaning of Article 181 on the sole and simple ground that after the amendment the reason on which the old construction was founded is no longer available.' His Lordship, however, proceeded to say that it was not necessary to pursue the matter further, for in the opinion of their Lordships even if Article 181 does apply to the application in question, it may still be said to be within time. These observations of their Lordships of the Supreme Court are binding upon this Court even though they may be in the nature of obiter dicta. Mr. Sen Gupta contended before us that the actual decision was made not on this basis but on the ground that even if Article 181 applied to the application which was before their Lordships it would still be within time. He contended that the observations to which I have just now referred were not even obiter dicta inasmuch as no final decision was arrived at by their Lordships on this point. I am unable to accept that contention of Mr. Sen Gupta. It seems to me that their Lordships did take the view that the long catena of decisions may well be said to have added the words 'under the Code', to the first column of that Article and if as a result of judicial constructions these words have come to be read into the first column then their Lordships cannot hold that subsequent amendment of Articles 158 and 178 must have the effect of altering the meaning of Article 181 on the ground that the reason on which the old construction was founded was no longer available. It seems to me that their Lordships did take a definite view on this point although the actual decision was made on other grounds. That being so, I am of opinion that the view expressed by their Lordships of the Supreme Court on this point is binding on us and we should give effect to the same. The contention, therefore, of Mr. Sen Gupta on this point must fail.

6. There is further difficulty in accepting the view pressed before us by Mr. Sen Gupta. The question, as I have mentioned, still remains as to when the right to apply accrues. Article 181 even if it applies lays down a period of three years starting from the period when the right to apply accrues. The question is when in a case of this kind the right to apply for probate accrues. Mr. Sen Gupta contended that it must accrue from the date when the executor for the first time became aware of the Will. I am unable to accept that contention. In my opinion, the right to apply for probate accrues from day to day so long as the Will remains unprobated. I agree with the submissions of Mr. Gupta on this point and hold that the reason why it has not been made necessary in an application for probate under Section 276 of the Indian Succession Act to state the facts constituting the cause of action and when the cause of action arose is that in the case of an unprobated Will the cause of action for an application for probate arises every moment so long as the Will remains unprobated. This view of mine finds clear support from a decision of the Madras High Court which has been subsequently followed by a Division Bench of this Court. In the case of Gnanamuthu Upadesi v. Vana Koilpillai Nadan, ILR 17 Mad 379 (H), Mr. Justice Muttusami Ayyar held that the Limitation Act does not apply to applications for probate, and the applications referred to in Article 178 of Schedule II of that Act which corresponds to Article 181 are applications under the Code of Civil Procedure. In the course of his judgment Mr. Justice Muttusami Ayyar made these significant observations :

'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.'

These observations to my mind lay down the basic principle on which this question has to be decided and they accord with the view which I have taken as to the time when the right to apply for probate accrues. In a subsequent decision of a Division Bench of this Court, Durgapada Bera v. Atul Chandra Bera : AIR1937Cal595 , Henderson and Biswas JJ. also took the view that applications for probate or letters of administration are not governed by the law of limitation. In their judgment their Lordships referred with approval to the said observations of Mr. Justice Muttusami Ayyar and repeated that the reason why the applications for probate are exempted from operation of the Limitation Act probably is that such an application is in the nature of an application for permission to perform a duty created by the Will or for recognition as a testamentary trustee, and the right to apply continues so long as the object to the trust exists or any part of the trust, if really created, remains to be executed.'Their Lordships proceeded to say that long delayin making an application for probate, or for lettersof administration with a copy of the Will annexed,is no doubt a circumstance which may be properlytaken into account in determining the question ofthe genuineness of the Will, but that is about theonly purpose for which it is relevant in such aproceeding and cases are not unknown in the reported decisions where probate or letters of administration have been granted many many years after thedeath of the testator. Their Lordships referred tothe said case of ILR 6 Cal 707 (B) and the case ofKhagaswar Sarma v. Someswar Bhattacharya, 33Cal LJ 382 : (AIR 1921 Cal 334) (J). That beingthe position, I am clearly of opinion that the contention of Mr. Sen Gupta must fail on both thesegrounds.

7. No other point was urged by Mr. Sen Gupta.

8. The result, therefore, is that the appeal fails and is dismissed with costs--the hearing fee being assessed at five gold mohurs.

9. No order is necessary on the application.

10. Before concluding our judgment we should express our gratitude for the assistance which Mr. Gupta has given to the Court in this appeal.

N.K. Sen, J.

11. I agree.


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