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 elsewhere in 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., AIR 1945 PC 105 (A). 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.;