SAMEER KAPOOR AND ANOTHER versus THE STATE THROUGH SUB-DIVISION MAGISTRATE SOUTH, NEW DELHI AND OTHERS

Citation: [2019] 6 S.C.R. 1104 · Decided: 29-04-2019 · Supreme Court of India · Bench: L. NAGESWARA RAO · Disposal: Dismissed
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Judgment (excerpt)

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SAMEER KAPOOR AND ANOTHER
v.
THE STATE THROUGH SUB-DIVISION MAGISTRATE SOUTH,
NEW DELHI AND OTHERS
(Civil Appeal No. 10482 of 2013)
APRIL 29, 2019
   [L. NAGESWARA RAO AND M.R. SHAH, JJ.]
Succession Act, 1925:
s. 276 – Applications for grant of probate or letters of
administration – Applicability of Art. 137 – Held: Art. 137 is
applicable to the applications for grant of probate or letters of
administration – Limitation Act, 1963 – Art. 137.
ss. 276 and 228 – Application under, for probate or for letters
of administration – If barred by limitation – Held: In a proceeding,
or in an application filed for grant of probate or letters of
administration, no right is asserted or claimed by the applicant –
Application for grant of probate or letters of administration is for
the court’s permission to perform a legal duty created by a Will or
for recognition as a testamentary trustee – Even if the Will is probated
by any court mentioned in s. 228, right to get the letters of
administration is a continuous right which can be exercised any
time, as long as the right to do so survives and the object of the
trust exists or any part of the trust, if created, remains to be executed
– On facts, probate case filed by respondent no.2 for letters of
administration u/s. 228/276 not barred by limitation – After passing
away of the testator, in 2000, the appellants started intermeddling
with properties bequeathed to respondent no.2, situated in Delhi
and, thus, he was compelled to apply for letters of administration –
Cause of action started from the date on which the appellants started
intermeddling with the properties bequeathed to respondent no.2 –
Thus, the application for letters of administration not barred by
limitation – High Court rightly refused to reject the plaint in exercise
of powers u/Or. VII r. 11 – Limitation Act, 1963 – Art. 137.
[2019] 6 S.C.R. 1104
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Dismissing the appeal, the Court
HELD: 1.1 Article 137 of the Limitation Act, 1963 shall be
applicable to the applications for grant of probate or letters of
administration. Application under Section 276 and 228 of the
Succession Act shall be covered by Article 137. [Para 10, 11]
[1113-F; G]
Kunvarjeet Singh Khandpur v. Kirandeep Kaur
(2008) 8 SCC 463 : [2008] 5 SCR 1057 ; Krishan
Kumar Sharma v. Rajesh Kumar Sharma (2009) 11 SCC
537 – relied on.
1.2 As per Article 137 of the Limitation Act, the period of
limitation prescribed is three years and the three years begin to
run when the ‘right to apply’ accrues. The crucial expression
under Article 137 of the Limitation Act is ‘right to apply’.
[Para 12.1][1114-B]
1.3 When an application under Section 276 of the Act is
submitted for probate or for letters of administration with Will, if
any objection is raised by any body with respect to execution of
the Will, in that case, the applicant is required to prove the Will
and thereafter the Will shall be probated and the court may pass
an order for letters of administration. However, in a case where a
Will has been proved or deposited in a court of competent
jurisdiction situated beyond the limits of the State, whether within
or beyond the limits of India, in that case, as provided under
Section 228 of the Act, when a properly authenticated copy of the
Will is produced, the letters of administration may be granted in
favour of such person. Meaning thereby, in such a situation, the
Will is not required to be proved again and it shall be conclusive.
Therefore, Section 228 of the Act shall be an enabling provision
and it confers an additional right to apply for letters of
administration on the basis of such authenticated copy of the Will.
Therefore, as rightly observed by the Single Judge and the
Division Bench that Section 228 is akin to Section 276 of the Act.
[Para 14.1][1115-E-H; 1116-A]
1.4 In a proceeding, or in an application filed for grant of
probate or letters of administration, no right is asserted or claimed
SAMEER KAPOOR  v. STATE THR.  SUB-DIVISION
MAGISTRATE SOUTH, NEW DELHI
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[2019] 6 S.C.R.
by the applicant. The applicant only seeks recognition of the court
to perform a duty. Probate or letters of administration issued by
a competent court is conclusive proof of the legal character
throughout the world. That the proceedings filed for grant of
probate or letters of administration is not an action in law but it is
an action in rem. An application
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