Case Note & Summary
The Supreme Court dismissed an appeal against the High Court's refusal to reject a plaint under Order VII Rule 11 CPC in a testamentary case. The dispute arose from the will of Smt. Kailash Kapoor, a British resident, who executed a will in 1990 bequeathing assets to her grandchildren. She died in 2001. The will was probated in England in 1997. In 2001, respondent no.2 filed a petition for letters of administration under Section 228 of the Indian Succession Act, 1925, in Delhi. The appellants, original defendants, sought rejection of the plaint on the ground that the petition was barred by limitation under Article 137 of the Limitation Act, 1963, as it was filed more than three years after the foreign probate. The Single Judge and Division Bench of the Delhi High Court rejected the application, holding that Article 137 does not apply to such petitions. The Supreme Court affirmed, reasoning that the right to apply for probate or letters of administration is a continuous right until the will is probated in the jurisdiction where the property is located. Since the petition was the first such application in India, it was not barred by limitation. The Court distinguished between Sections 228 and 276 of the Act but held that for limitation purposes, both are treated similarly. The appeal was dismissed, and the petition for letters of administration was allowed to proceed.
Headnote
A) Limitation Act - Article 137 - Applicability to Succession Petitions - Article 137 of the Limitation Act, 1963 does not apply to a petition for letters of administration under Section 228 of the Indian Succession Act, 1925 when it is the first such petition filed in India, even if a probate was previously granted by a foreign court - The right to apply for probate or letters of administration is a continuous right until the will is probated in the jurisdiction where the property is situated - Held that the petition is not barred by limitation (Paras 6-10). B) Indian Succession Act - Section 228 vs Section 276 - Distinction - Section 228 applies to wills already proved and deposited in a foreign court, while Section 276 applies to unprobated wills produced for the first time - The scope of enquiry under Section 228 is limited as the will is already authenticated - However, for limitation purposes, both are treated similarly as the first petition in India - Held that the distinction does not affect the applicability of limitation (Paras 6-8). C) Civil Procedure Code - Order VII Rule 11 - Rejection of Plaint - An application for rejection of plaint under Order VII Rule 11(d) CPC on the ground of limitation cannot be granted when the petition is not ex facie barred by limitation - The court must consider the plaint allegations and the law - Held that the application was rightly dismissed (Paras 3-5).
Issue of Consideration
Whether a petition for letters of administration under Section 228 of the Indian Succession Act, 1925, filed after a foreign probate, is barred by limitation under Article 137 of the Limitation Act, 1963, and whether the plaint should be rejected under Order VII Rule 11 CPC.
Final Decision
The Supreme Court dismissed the appeal, upholding the orders of the Single Judge and Division Bench of the Delhi High Court, and refused to reject the plaint under Order VII Rule 11 CPC. The petition for letters of administration under Section 228 of the Indian Succession Act was held not barred by limitation.
Law Points
- Article 137 of Limitation Act
- 1963 does not apply to petitions for letters of administration under Section 228 of Indian Succession Act
- 1925 when it is the first such petition in India
- distinction between Sections 228 and 276 of Indian Succession Act
- Order VII Rule 11 CPC rejection on limitation grounds not warranted
