M.R.SHAH, J. - (1.) Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Delhi at New Delhi in F.A.O(OS) No. 11 of 2009, by which a Division Bench of the High Court has dismissed the said appeal and has confirmed the order passed by the learned Single Judge refusing to reject the plaint under Order VII Rule 11 of the CPC, the original defendants have preferred the present appeal.
(2.) The brief facts leading to this appeal are, that one Smt. Kailash Kapoor, a permanent resident of England, executed a will dated 16.05.1990 bequeathing thereunder all her assets to two of her grand-children. That the said Smt. Kailash Kapoor died in England on 10.09.2001. According to the appellants, they acted upon the said will and disposed of all the immovable properties of the aforesaid testatrix, possessed in India between 6.9.2000 to March, 2001. That after the death of late Smt. Kailash Kapoor, the High Court of Justice, District Probate Registry of Birmingham, England and Wales issued a probate in respect of the said will vide order dated 21.11.1997. It appears that thereafter in the year 2001, respondent no. 2 herein, at whose instance the will was probated in England, applied for letters of administration for property situated in Delhi by filing a Testamentary Case under Section 228 of the Indian Succession Act (hereinafter referred to as the 'Act') being Testamentary Case No. 15 of 2001. 2.1 That the appellant herein filed I.A. No. 13895 of 2006 before the learned Single Judge of the High Court, praying to reject the plaint under Order VII Rule 11 of the CPC on the ground that the said Testamentary Case under Section 228 of the Act, considering Article 137 of the Limitation Act, 1963, is barred by the law of limitation. It was the case on behalf of the appellants that though no limitation would apply seeking grant of probate so long as a person has not approached the court and will is probated, however, once the court at England and Wales had been approached and a probate had been granted, no petition for letters of administration could have been filed after a lapse of a period of three years. The said application was opposed by respondent no.2 herein - the original applicant. It was submitted that Article 137 of the Limitation Act would not apply.
(3.) The learned Single Judge vide order dated 24.09.2008 dismissed the said application and refused to reject the plaint under Order VII Rule 11 of the CPC by observing that Section 228 of the Act is akin to provisions of Section 222 and 276 of the Act and, therefore, when there is no period of limitation prescribed for submitting an application under Section 222 and/or Section 276 of the Act, for submitting an application under Section 228 of the Act, the period of limitation shall not be applicable. Therefore, the learned Single Judge was of the opinion that Article 137 of the Limitation Act shall have no application.;