RAMANAND THAKUR Vs. PARMANAND THAKUR

JUDGEMENT

(1.) This application arises out of a probate proceeding for the grant of probate of a will. The objector who is the petitioner before us took an objection that the application filed for probate of the will executed by one Munna Lal Thakur, who died on 12-10-1968, was barred by Limitation under Article 137 of the Limitation Act 1963 in as much as having been filed on 11-7-1979 beyond the prescribed period of three years under said Article.

(2.) The learned District Judge following a decision of the Calcutta High Court has rejected this plea. Accordingly the objector has come to this Court and a learned single Judge before whom the case was placed for hearing has referred it to a Division Bench.

(3.) Article 137 of the new Limitation Act is the residuary Article like Article 181 of the old Limitation Act but with certain modification in the language and its classification which in our view is of great importance. Article 181 was placed in the Third Division dealing with the application, but Article 137 has been placed separately although under the Third Division in a separate part to govern "other applications" apparently thereby indicating the intention of the legislature that the expression application was not confined to the types of cases where the other articles under the Third Division were placed. Apart from the change of the division, the words used in Article 137 are also slightly different. The words "any other application" under Article 137 cannot be said on the principle of ejusdem generis applies only to applications under the Code of Civil Procedure other than those mentioned in Part I of the Third Division. In the old Limitation Act the word "application" was not defined and all that was defined was the expression "applicant". The changed definition of the words "applicant" and introduction of the definition of the word "application" in Section 2 (a) and 2 (b) of the 1973 Act indicates the object of the Limitation Act to include petitions under special laws other than the Code of Civil Procedure. It was on this account that the operation of Article 181 was limited to applications made under the Civil Procedure Code particularly in view of the fact that all the other applications in the division in which Article 181 was placed referred to the applications under the Code of Civil Procedure and, therefore, almost all the High Courts including the Supreme Court had taken the view that the "applications" referred to in Article 181, by the application of the doctrine of ejusdem generis applied only to the applications under the Code of Civil Procedure.