KRISHNA KUMAR SHARMA versus RAJESH KUMAR SHARMA

Citation: [2009] 4 S.C.R. 1223 · Decided: 27-03-2009 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Partly allowed
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Judgment (excerpt)

[2009] 4 S.C.R. 1223 
KRISHNA KUMAR SHARMA 
A 
,. 
< 
V. 
RAJESH KUMAR SHARMA 
:.. 
Civil Appeal No. 1967 of 2009 
MARCH 27, 2009 
B 
[DR.ARIJIT PASAYAT AND ASOK KUMAR GANGULY, 
JJ.] 
Limitation Act, 1963 - Article 13 7 - Applicability of, to 
probate proceedings - Held: Article 137 is, clearly applicable c 
to petition for grant of probate or Letters of Administration -
However, since other issues involved, matter remitted back 
for consideration afresh - Succession Act, 1925. 
The question which arose for consideration in the 
) 
appeal was whether Article 137 of the Limitation Act, 1963 D 
would be applicable to the proceedings seeking probate. 
Partly allowing the appeal, the Court 
HELD: 1.1 Any application to civil court under the 
Succession Act, 1925 is covered by Article 137 of the E 
Limitation Act, 1963. The application is made in terms of 
"' 
s. 264 of the 1925Act to the District Judge. Section 2(bb) 
of th.,e Act defines the District Judge to be Judge of 
Principal Civil Court. The crucial expression is "right to 
F 
apply". Article 137 is clearly applicable to the petition for 
grant of Letters of Administration. In such proceedings 
the applicant merely seeks recognition from the Court to 
perform a duty because of the nature of the proceedings. 
" 
It is a continuing right. Though the nature of the petition 
G 
has been rightly described by High Court, it was not 
correct in observing that the application for grant of 
probate or letters of Administration is not covered by 
Article 137 of the Limitation Act. [Paras 5, 7 and 8] [1227-
A-8; G-H; 1229-A-B] 
1223 
H 
1224 
SUPREME COURT REPORTS 
[2009] 4 S. C.R. 
A 
1.2 Since other issues were involved, the matter is 
1 
' 
remitted back to consider the matter afresh in view of 
Kunvarjeet's case*. [Para 11] 
The Kera/a State Electricity Board, Trivandrum v. TP 
8 
Kunhaliumma 1976 (4) SCC 634 - relied on. 
* Kunvarjeet Singh Khandpur v. Kirandeep Kaur and Ors. 2008 
(8) SCC 463; S.S. Lal v. Vishnu Mitter Govil 112 (2004) Delhi 
Law Times 877 (DB); Kanwal Malhotra v. State 125 (2005) Delhi 
Law Times 281; S.S. Rathore v. State of M.P. 1989(4) SCC 
c 582; S. Krishnaswami and etc. etc. v. E. Ramiah AIR 1991 
Madras 214; Vasudev Daulatram Sadarangani v Sajni Prem 
Lalwani AIR 1983 Bom.268 - referred to. 
Case Law Reference 
' 
D 
112 (2004) DLT 877 
Referred to. 
Para 3 
125 (2005) DLT 281 
Referred to. 
Para 3 
1976 (4) sec 634 
Relied on. 
Para 5 
E 
1989(4) sec 582 
Referred to. 
Para 6 
AIR 1991 Madras 214 Referred to. 
Para 7 
AIR 1983 Bom.268 
Referred to. 
Para 9 
2008 (8) sec 463 
Referred to. 
Para 10 
F 
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1967 
of 2009 
From the Judgement and Order dated 05.07.2005 of the 
Hon'ble High Court of Delhi at New Delhi in F.A. No. 641 of 
\. 
G 2002. 
' K.K. Mohan, for the Appellant. 
Aseen Mehrotra, Abhijat P. Medh, for the Respondent. 
H 
The Judgement of the Court was deliveredby 
KRISHNA KUMAR SHARMA V. 
1225 
RAJESH KUMAR SHARMA 
DR. ARIJIT PASAYAT, J. 
A 
1. Leave granted. 
2. Challenge in this appeal is to the order passed by the 
D~lhi High Court which by the impugned order allowed the 
appeal filed by the respondent. 
B 
3. Background facts in a nutshell are as follows: 
Respondent, the propounder of the registered wil.I dated 
13th July, 1989 executed by his mother, has locked horns with 
his step brother, Krishan Kumar Sharma, the appellant herein C 
Smt. Sneh Prabha Sharma, the testatrix, and her husband Ram 
Mohan Sharma were married twice. Respondent is the son of 
testatrix and Ram Mohan Sharma. Appellant is the son from the 
first wife of Ram Mohan Sharma. The respondent's case is this 
that the will dated 13
1h July, 1989 was made by the above said D 
testatrix in sound disposing mind on 13th July, 1989 and it was 
th 
. 
got registered on 11 
September, 1989. SmL Sneh Prabha 
Sharma died on 9th July, 1990. Except the appellant, none of 
the other siblings of the appellant contested the petition moved E 
by the appellant under Section 276 of the Indian Succession 
Act, 1925 (in short the 'Act'). 
The basic question before the High Court was whether 
Article 137 of the Indian Limitation Act, 1963 (in short the 
'Limitation Act') applies to the facts of the present case. The F 
High Court relied upon the judgments of Delhi High Court in 
S.S. Lal v. Vishnu Mitter Govil [112 (2004) Delhi Law Times 
877 (DB)] and in Kanwal Malhotra v. State [125 (2005) Delhi 
Law Times 281] to hold that Limitatio
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