Appeal under Commercial Courts Act- If delay condonable

 

Appeal under CommerciAl Courts Act- If delay condonable

Section 13(1-A) of the Commercial Courts Act, 2015

The provisions of The Commercial Courts Act 2015 ( In short CCA) as amended and up to date are known for its rigour and strict compliance and no deviation from the strict stipulation is contemplated and courts of law has always been veering round to ensure the strict compliance of the legal prescription as codified in the CCA. In the present discussion, however, the delay if caused in appeal to be filed before the appellate authorities after judgment and decree passed by the District Judge ( Commercial Courts) is being deliberated. The appeal before the Commercial Appellate Division of the High Court shall only relate to appeals under Section 13 of CCA to the judgment and decree as afore stated as also against such other Order or orders where the appeal is provided for under Order XLIII of the Code of Civil Procedure. The limitation period for filing the appeal before the High Court is Sixty (60) days, however, whether any condonation in delayed filing of the appeal is condonable or not and if in exceptional cases, the condonation of delay could be made out or not is also deliberated herein and if so, what are such circumstances when the delay could be condoned and what are the limits or fetters attached thereto, if any shall be deliberated herein based on settled judicial precedents.        

The Supreme Court in a matter captioned as Jharkhand Urja Utpadan Nigam Ltd & Anr VERSUS M/S Bharat Heavy Electricals Limited Special Leave to Appeal (C) No.9580/2025 has comprehensively dealt with the aspect while taking note of the judicial precedents and reliance placed on behalf of the petitioner/appellant.

The backdrop of the case for ready reference and relevant in the context is that the SLP preferred against the judgment and order passed by the High court of Jharkhand at Ranchi dated 14.02.2025 in Commercial Appeal No. 1 of 2025 by which the High Court had rejected the Interim Application No. 11269 of 2024 filed by the petitioner herein under Section 5 of the Limitation Act, 1963, thus, declining to condone the delay of 301 days in filing the main appeal under Section 13(1-A) of the Commercial Courts Act, 2015 for short, the “Act, 2015”.

                        FACTUAL BACKGROUND

That M/s. Bharat Heavy Electricals Limited, a Central Government Company, instituted a civil suit against the petitioners herein for recovery of Rs. 26,59,34,854/- with interest at the rate of 15.75 per cent per annum calculated quarterly till realization from 12.11.2014 on the basis of the award passed by the MSME Council Kanpur.

In filing the statutory appeal, there was a delay of 301 days and thus, the petitioners prayed for condonation of delay. The High Court had rejected the plea on the premise that no sufficient cause was assigned by the petitioners for the purpose of condonation of delay. Before the Supreme Court, it was pleaded by the petitioner as under:

(i) the High Court committed a serious error in dismissing the commercial appeal on the ground of limitation without considering the true purport of the provisions of Order XX Rule 1 CPC inserted specially for the commercial courts.

(ii) The High Court failed to take into consideration an important question of law that the pronouncement of the judgment in the open court in accordance with the amended provisions of Order XX Rule 1 CPC cannot be the starting point of limitation, unless, a free copy of the judgment is provided to the parties in the manner provided under Order XX Rule 1 CPC.

It was canvassed that Order XX Rule 1 CPC should be construed as mandatory and not directory in so far as providing a copy of the order is concerned.

Reliance placed on the following judgments rendered by the Supreme Court:

 

(i)     Housing Board, Haryana v. Housing Board Colony Welfare Association and Others reported in (1995) 5 SCC 672 and

(ii)    Sagufa Ahmed and Others. v. Upper Assam Polywood Products Private Limited and Others reported in (2021) 2 SCC 317.

 

THE COMMERCIAL COURTS ACT

The objective of Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015  was speedy resolution of commercial disputes. The “Commercial disputes” have been defined with an inclusive definition and it covers almost all disputes arising out of the commercial activities. The Act provides for a Schedule which amends certain provisions of CPC. These provisions are applicable to Commercial Disputes of Specified Value. The Act has clarified that the provisions of the CPC as amended by the Act would have an overriding effect over any rules of the High Court, or the amendments to the CPC made by a State Government.

Section 16 of the Act, 2015 reads thus:

“16. Amendments to the Code of Civil Procedure, 1908 in its to commercial disputes.—

(1) The provisions of the Code of Civil Procedure, 1908 (5 of 1908) shall, in their application to any suit in respect of a commercial dispute of a Specified Value, stand amended in the manner as specified in the Schedule.

(2) The Commercial Division and Commercial Court shall follow the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, in the trial of a suit in respect of a commercial dispute of a Specified Value.

(3) Where any provision of any Rule of the jurisdictional High Court or any amendment to the Code of Civil Procedure, 1908 (5 of 1908), by the State Government is in conflict with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, the provisions of the Code of Civil Procedure as amended by this Act shall prevail.”

(iii) Section 13 of the Act, 2015 provides for appeals. The same reads thus:

“13. Appeals from decrees of Commercial Courts and Commercial Divisions.—

(1) Any person aggrieved by the judgment or order of a Commercial Court below the level of a District Judge may appeal to the Commercial Appellate Court within a period of sixty days from the date of judgment or order. (1A) Any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising original civil jurisdiction or, as the case may be, Commercial Division of a High Court may appeal to the Commercial Appellate Division of that High Court within a period of sixty days from the date of the judgment or order: Provided that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908 (5 of 1908) as amended by this Act and section 37 of the Arbitration and Conciliation Act, 1996 (26 of 1996)

(2) Notwithstanding anything contained in any other law for the time being in force or Letters Patent of a High Court, no appeal shall lie from any order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of this Act.”

The Order XX Rule 1 of the CPC reads as :

“1. Judgment when pronounced.—

(1) The Court, after the case has been heard, shall pronounce judgment in an open Court, either at once, or as soon thereafter as may be practicable and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleaders: Provided that where the judgment is not pronounced at once, every endeavour shall be made by the Court to pronounce the judgment within thirty days from the date on which the hearing of the case was concluded but, where it is not practicable so to do on the ground of the exceptional and extraordinary circumstances of the case, the Court shall fix a future day for the pronouncement of the judgment, and such day shall not ordinarily be a day beyond sixty days from the date on which the hearing of the case was concluded, and due notice of the day so fixed shall be given to the parties or their pleaders.

The Commercial Court, Commercial Division, or Commercial Appellate Division, as the case may be, shall, within ninety days of the conclusion of arguments, pronounce judgment and copies thereof shall be issued to all the parties to the dispute through electronic mail or otherwise.

(2) Where a written judgment is to be pronounced, it shall be sufficient if the findings of the Court on each issue and the final order passed in the case are read out and it shall not be necessary for the Court to read out the whole judgment.

(3) The judgment may be pronounced by dictation in open Court to a shorthand writer if the Judge is specially empowered by the High Court in this behalf: Provided that, where the judgment is pronounced by dictation in open Court, the transcript of the judgment so pronounced shall, after making such correction therein as may be necessary, be signed by the judge, bear the date on which it was pronounced, and form a part of the record.”

The expression “pronounced judgment and copies thereof shall be issued to all the parties to the dispute through electronic material or otherwise”. According to the Supreme Court, the argument canvassed on behalf of the petitioners is that the aforesaid expression should be construed as mandatory and not directory. In other words, the argument is that the period of limitation would start only after the copy of the judgment is provided to the party concerned through any one of the modes as provided in law.

The Supreme Court in the context in Jharkhand Urja Utpadan Nigam Ltd  (Supra) has observed as under:

10. We are afraid it is difficult for us to take the view that the provision referred to above is mandatory. It comes to this that till the Registry does not provide the copy of the judgment, though not demanded, the period of limitation would not commence from the date of the pronouncement of the judgment.

11. Placing reliance on the decision of Housing Board, Haryana (supra) it has been contended by the appellants herein that where the rules themselves enjoin a duty of communicating any order or judgment that has been passed by a court or forum, then in such cases, the period of limitation prescribed has to be computed from the date of such communication”.

According to the Supreme Court, following observation is worthy of reiteration:

“12. In Housing Board, Haryana (supra), the facts germane for our consideration are that three appeals were filed before the State consumer commission by the appellants therein. The State consumer commission dismissed all the three appeals on the ground that those were barred by limitation. In appeal before this court, the appellant therein contended that the delay in filing those appeals was on account of the non-availability of the certified copy of the decision rendered by the District Forum which was sought to be challenged. The appellant therein contended that as per Rule 4(10) of the Haryana Consumer Protection Rules, 1988 all orders of the District Forum are required to be signed and communicated to the parties free of charge. However, since the order in question after being pronounced could not be signed due to non-availability of the President of the District Forum the certified copy of the order could not be provided in time. In such circumstances, this Court held that the period of limitation would begin to run only from the date on which the copies of the order were made available. The relevant observations read as under:

“13. In the present case as laid before the State Commission the appellant contended that the order was pronounced by the District Forum in the open court on 22-10-1992, it was not signed and dated as the President had proceeded on leave soon thereafter and therefore, neither the reasons on which the said order was based were known nor a copy thereof was furnished to the appellant-Board so as to know the reasons and contents of the order. It was also the case of the appellant that on an enquiry by the counsel for the appellant-Board he was informed by the stenographer of the President that the order would be dictated and typed after the return of the President and that the copy would be made available to the parties only on 30-10-1992 under the signature of the President and the copy was in fact made available to the counsel for the appellant only on 3-11 1992. It may be pointed out that Shri Tirath Singh, learned counsel appearing for the appellant-Board before the National Commission had filed his own affidavit affirming these facts which have not been controverted by the respondents. On the contrary the reply filed in this Court by Shri K.C. Chug, President, Housing Board Colony Welfare Association, Kurukshetra on behalf of the respondents has admitted that “in the present case free copies were ready with the office on 30-10-1992 which were collected by the counsel for the answering respondent on 30-10-1992 whereas the counsel for the petitioner got the same on 3-11-1992”.

From these facts it is abundantly clear that the copies were duly signed and dated by the members of the forum on 30-10-1992. That being so the period of limitation in view of the above discussion will commence from the date on which the copies of the order were ready and made available i.e. 30-10-1992. In the present case the appeals were filed before the State Commission on 30-11-1992 and since 29-11-1992 was Sunday, the appeals were prima facie within time. In these facts and circumstances there was no question of making any application for condonation of delay in filing the appeals as there was no delay at all.”

Although the Supreme Court has in Housing Board, Haryana (supra) had held that where the provisions enjoin a duty of communicating any order or judgment that has been pronounced, the limitation for challenging the same would begin from the date of such communication, yet the aforesaid observations cannot be construed devoid of the context in which they were made. A close reading of the decision would indicate that in the said case, after the pronouncement of the order, the appellants therein had made active efforts for procuring the said order, and this is evident from the fact that few days after the pronouncement, the counsel of the appellants therein had made inquiries as regards the unavailability of the order in response to which he was informed that the order was yet to be signed. Thus, when the Supreme Court in Housing Board, Haryana (supra) held that the limitation for challenging the same would begin from the date of such communication, the same would be applicable only where despite best of efforts at the end of the parties in procuring the order the same could not be obtained and thereby resulting in unavoidable delay in the filing of appeals. One of the core tenets of the law of limitation is to enthuse diligence amongst parties as to their rights. The law of limitation cannot be read in such a manner whereby parties stop showing any modicum of regard for their own rights and on the pre-text of untimely communication continue to litigate without being vigilante themselves.

As regards the reliance on the decision of Sagufa Ahmed (supra) is also misplaced. In the said case, the Supreme  Court while considering Section 421 sub-section (3) of the Companies Act, 2013 held that the period of limitation prescribed therein would start running only from the date on which a copy of the order is made available to the person aggrieved. However, yet again in the said case, the appellants therein had made some efforts to procure a certified copy of the order to be assailed during the period of limitation. In the present case, after the order in question came to be pronounced by the Commercial Court, Ranchi, the appellants herein during the limitation period did not bother to even inquire as to why the said order was not available. It was only eight-months after the pronouncement of the said order and almost 150-days after the expiry of the limitation period, that the realization suddenly dawned upon the appellants herein to apply for the certified copy.

It was thus held as under:

17. One of the avowed objects of the provisions of the Commercial Courts Act read with amended provisions of CPC applicable to the Commercial Courts is to ensure that there is no unnecessary delay in disposal of the commercial suit. Once specific time lines are fixed and there is a strict procedure provided in terms of the Commercial Courts Act, parties are by the statute put to notice that they have to very carefully contest the suits filed as commercial suits and that failing to comply with statutory timelines and a strict procedure, certain adverse consequences may flow on account of lack of application by a contesting party.

It was accordingly held that merely because Order XX Rule I enjoins a duty upon the commercial courts to provide the copies of the judgment that does not mean that the parties can shirk away all responsibility of endeavoring to procure the certified copies thereof in their own capacity. Any such interpretation would result in frustrating the very fundamental cannons of law of limitation and the salutary purpose of the Act, 2015 of ensuring timely disposals.

The relevant findings recorded by the High Court are worthy of consideration in as much as in para 18 of its judgment, the high court had framed the following question for its consideration.

“18. The question for consideration is: “whether the applicants herein can plead that the period of limitation for filing the appeal to Commercial Appellate Division of this Court did not commence at all because the certified copy of the judgment had not been issued to the applicants by the Commercial Courts?”

The High Court, thereafter, proceeded to answer the aforesaid question as under:

“19. In order to answer this question, we cannot lose sight of the whole purpose of enactment of the Commercial Courts Act, 2015 i.e., to provide for speedy disposal of high value commercial dispute.

20. No doubt there was a similar provision in Haryana Consumer Protection Rules, 1988 framed under the Consumer Protection Act, 1986 which was considered by the Supreme Court in the case of Housing Board, Haryana (supra). The said provision in the Haryana Consumer Protection Rules, 1988 also provided for communication of the order of the District forum to the parties free of charge in order to avoid the delay as well as to save the parties from the burden of expenses that may he incurred for obtaining the certified copy. The Supreme Court held that the scheme of the Consumer Protection Act was to provide for better protection of the interest of the consumers as a measure for economical and speedy remedy for the settlement of the dispute and the matters connected therewith and therefore, the said rule should be understood in a manner so that it would protect the interest of the parties before the District forum by making it obligatory on the District forum to provide a copy of the order duly signed and dated by the members of the Bench; and the period of limitation prescribed with regard to filing of an appeal under Section 15 of the said Act therefore, has to be computed as commencing from the date of communication of the order in the manner laid down in the rules. It was in that context that it was Held that mere pronouncement of an order in the open Conn would not be enough, but under the scheme of the rules copy of the said judgment has to be communicated to the parties affected by the said order so that the parties adversely affected therefrom may have a fair and reasonable opportunity of knowing the text, reasons and contents thereof so as to formulate grounds of attack before the appellate or before the higher forums. In absence of such communication of signed and dated order, it was held that the parties adversely affected by it will have no means of knowing the contents of the order so to challenge the same and get it set aside by the appellate authority or by the higher forums.

21. Normally petitioners before the District forums under the Consumer Protection Act, 1986 are individuals and not corporate entities like the appellant/instrumentality of the State. So, there is justification for taking the view as regards petitioners in District forums that the provisions in the Haryana Consumer Protection Rules, 1988 which mandated communication of the order of the said forums to the parties free of charge was to save the parties from the burden of expenses that may be incurred for obtaining the certified copy.

22. We are afraid that the logic behind the provision contained in Haryana Consumer Protection Rules, 1988 framed under the Consumer Protection Act. 1986 cannot be applied to the litigants before the Commercial Court. For Commercial entities and in particular litigants like the applicants herein who are the State Government Undertakings, the expenses of obtaining a certified copy of a judgment of the Commercial Court would be very small compared to the stakes involves in the litigation.

23. Therefore, they cannot be put on the same footing as a petitioner before the District Consumer forum; and the logic of counting the period of limitation from the date of communication of the order of consumer forum, cannot be applied to a Commercial dispute to which Commercial entities are parties. 24. In our opinion. Order XX Rule 1 CPC as amended and made applicable to the Commercial Courts is to be treated as only directory and not mandatory. So notwithstanding the provision contained in the amended Order XX Rule 1 CPC (mandating issuance of copies to the parties to the dispute through electronic mail or otherwise), if such copies are not issued within a reasonable time, the parties to the dispute have to apply for the same, and after obtaining it, prefer an appeal within the time prescribed in Section 13(1-A) of the Commercial Courts Act, 2015.

25. This is because the speedy resolution of high value commercial dispute cannot be lost sight of. Such an interpretation would be in tune with the scheme and object of the Commercial Couns Act, 2015 and any interpretation of the nature advanced by the counsel for the applicants would defeat the whole purpose of the object of the Commercial Courts Act. 2015 to provide for speedy disposal of high value commercial disputes.

26. Therefore, we reject the contention of the counsel for the applicants that the period of limitation for filing the appeal to the Commercial Appellate Division of the High Court would not commence unless the judgment of the Commercial Court in the Commercial suit was communicated by the said Commercial Court to the parties.

As regards the delay of 301 days in filing this Commercial Appeal, whether that can be condoned in exercise of power conferred on the appellate division under Section 5 of the Limitation Act, 1963, it was held that the extent of applicability of Section 5 of the Limitation Act, 1963 to cases falling under the Commercial Courts Act, 2015 fell for consideration of the Supreme Court in another case featuring Government of Maharashtra  Vs M/s Borse Brothers Engineers & Contractors Pvt Ltd Civil Appeal No. 999 of 2021 (arising out of SLP (Civl) No. 15278 of 2020)   and the Supreme Court had held in the said judgment while discussing the statement of objects and reasons behind enacting of the Commercial Courts Act, 2015 and held that period of limitation must always to some extent be arbitrary and may result in some hardship, but this is no reason as to why they should not be strictly followed. It was further held that the condonation of delay under Section 5 of the Limitation Act, 1963 has to be seen in the context of the object of speedy resolution of the dispute. The object sought to be achieved under the Commercial Courts Act, 2015 i.e., the speedy resolution of the disputes, expression "sufficient cause" in Section 5 of the Limitation Act, 1963 is not elastic enough to cover long delays beyond the period provided by the appeal provision itself; and that the expression "sufficient cause" is not itself a loose panacea for the ill of pressing negligent and stale claims. It was therefore categorically held by the Supreme Court that in exercise of power under Section 5 of the Limitation Act, 1963 a delay beyond the period of 60 days from the date on which the appeal could have been filed can be condoned (i.e., below 120 days from the date of pronouncement of the judgment) by invoking Section 5 of the Limitation Act, 1963, but where there is negligence, inaction or lack of bona fides, such power ought not to be exercised. Merely, because, the Government is involved, a different yardstick for condonation of delay cannot be laid down. Moreover, because, sufficient cause has been made out in the facts of a given case, there is no right in the applicants or the appellants to have the delay condoned. In para 63  it was held as under:

“63. Given the aforesaid and the object of speedy disposal sought to be achieved both under the Arbitration Act and the Commercial Courts Act, for appeals pled under section 37 of the Arbitration Act that are governed by Articles 116 and 117 of the Limitation Act or Section 13(l-A) of the Commercial Courts Act, a delay beyond 90 days, 30 days or 60 days. respectively, is to be condoned by way of exception and not by way of rule. In a fit case in which a party has otherwise acted bona fide and not in a negligent manner, a short delay beyond such period can, in the discretion of the court, he condoned, always bearing in mind that the other side of the picture is that the opposite party may have acquired both in equity and justice, what may now be lost by the first party’s inaction, negligence or laches.”

Thus, the Supreme Court in Government of Maharashtra (Supra)  case had permitted condonation of delay beyond 60 days in a case falling under the Commercial Courts Act, only by way of exception and not by way of rule. If the applicants for condonation of delay had not acted bona fide and had acted in a negligent manner as in the instant case, the delay is not liable to be condoned. As in the present case, the delay in filing the appeal is 301 days – way beyond 60 days + 60 days = 120 days permitted by the judgment of the Supreme Court to be condoned in exercise of power under Section 5 of the Limitation Act, 1963. Therefore, such inordinate delay caused by negligence of the applicants is not liable to be condoned.

Yet another aspect that was noted in the context was that the applicants were represented before the Commercial Court, Ranchi by counsel and the judgment was obviously pronounced in the presence of the counsel. Though the order was pronounced on 09.10.2023 it appears that the application for issuance of certified copy was made on 30.08.2024, it was made ready on 07.09.2024, and the appeal was filed on 04.10.2024. If the Commercial Court had not communicated the copy of its judgment to the applicants within the reasonable time, it was incumbent on the part of the counsel for the applicants or the employees in the Legal Department of the applicants to apply for issuance of certified copy from the Commercial Court, but they have failed in their duty to apply for it when they did not receive it within a reasonable time. Their negligence resulted in the inordinate delay of 301 days in filing this appeal. Obviously, in such a circumstances, the applicants cannot blame the respondent for not communicating to them about the disposal of the appeal and for not making any demand of payment in terms of the decree of the Commercial Court. Again, no advantage could be reaped as regards the negligence of the counsel engaged by them in not informing the applicants about the judgment of the Commercial Court. The applicant also had a Legal Department and employees engaged by the applicants in that department had a duty to monitor what is happening in the cases to which the applicants are parties, keep track of the progress of the said cases and the decisions therein, and ensure that applications for issuance of certified copy are made to the concerned court so that the appeals, if required, can be preferred within the period of limitation prescribed by law.

Therefore, unambiguous dicta that emerges from the above discussion is that the CCA 2015 contains provisions that has to be construed strictly and no leverage is required to be accorded to the delaying party, given the object of the Act. However, as regards the appeal filed before the appellate division of the High Court u/s 13 (1A) of the CCA 2015 as amended and up to date, in rare circumstances, the delay can be condone upto 120 days i.e 60 days beyond the permissible limit of filing of appeal and that too, when no negligence is attributed for delay and not as a matter of right. Beyond the said period of 120 days the delay cannot be condoned and resultantly appeal cannot be entertained.   

The Special Leave Petition was therefore dismissed.

                                        -----

                                Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

               

Probate Petition and law of limitation

 

Probate Petition and law of limitation

 

A perplexing point, in a case for seeking probate of a Will or Letter of Administration, as the case may be, relates to whether or not the period of limitation as per Limitation Act 1963 are applicable in testamentary case and if so, what will be the relevant date for reckoning the period of limitation. The Supreme Court, very recently in a matter captioned as Sanjay Sharma @ Sanjay Bhardwaj Vs Krishnadhan Khaware & Ors 2026 INSC 708 =  SLP (C) No. 13473/2022 decided on 15^th July 2026, has put to rest the ambiguity as regards the aforesaid, and has authoritatively adjudicated the law, after having culled out the provisions of Indian Succession Act 1925 and law enunciated in this regard, thus far.

To set out the facts herein in brief, the application dated 31^st  August 2005 initiated by one Bhudeo Prasad Singh, for probate of a Will dated 15^th April 1995 executed by one Shrilal Singhania, was rejected by the District Judge, Deoghar under Section 222 and 276 of the Indian Succession Act, 19252 by order dated 31^st July 2012. The order was passed on an application filed under Order VII Rule 11 of Code of Civil Procedure, 1908 by the objectors-respondents herein. The matter was taken to the Jharkhand High Court by way of MA No.153 of 2012 which was dismissed by judgment dated 28^th April 2022.

The limited issue which presents for consideration before the Supreme Court was as to whether the application for probate is barred by the law of limitation?

According to the Supreme Court, the answer to this question is fairly straight forward as ISA 1925 does not provide for any particular time period within which application for probate, or revocation thereof can be filed before the concerned Court. In these circumstances, the residuary provision of the Limitation Act, 19634 i.e., Article 137 would be the relevant provision. It reads as under:

	Description of suit	Period of limitation	Time from which period begins to run
137	Any other application for which no period of limitation is provided elsewhere in this Division.	Three Years	When right to apply accrues

 

The Courts below were swayed by the fact that as the application for probate was made in 2005, when the testator passed away a decade, prior to 7^th June 1995 and as the delay, in their considered view remained  unexplained and unjustified and hence it was barred by limitation.  The Supreme Court held otherwise.

According to the Supreme Court, the probate of a Will has three -fold purposes-

(a) It is a judicial stamp of approval on the genuineness of the Will;

(b) It acknowledges the appointment of an executor of the Will;

(c) It grants the executor to act for the purposes of the Will. Keeping this in view, the specific view that the period of limitation for probate commences from the death of the testator has been rejected.

The relevant judgment in this context could be found in a judgment of Bombay High Court in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani, 1983 SCC OnLine Bom 54 has been broadly upheld by the Supreme Court in matters reported as Kunvarjeet Singh Khandpur v. Kirandeep Kaur (2008) 8 SCC 463, and in Sameer Kapoor v. State (2020) 12 SCC 480 by large were on same point of adjudication, , except on one point.

The following paragraph of the judgment of Bombay High Court was quoted by the Supreme Court in approval and are as under:

“15. Similarly ,reference was made to a decision of the Bombay High Court in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani [AIR 1983 Bom 268] . Para 16 reads as follows : (AIR p. 270)

“16. Rejecting Mr Dalpatrai's contention, I summarise my conclusions thus—

(a) under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made;

(b) the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted;

(c) such an application is for the court's permission to perform a legal duty created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, 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;

(d) the right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceased's death;

(e) delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay, greater would be the suspicion;

(f) such delay must be explained, but cannot be equated with the absolute bar of limitation; and

(g) once execution and attestation are proved, suspicion of delay no longer operates.”

Conclusion (b) is not correct while Conclusion (c) is the correct position of law.”

In both judgments of the Supreme Court, it has been stated that point (b) is incorrect while (c) is the correct position of law.

The Supreme Court has therefore held in Sanjay Sharma (Supra) as under:

6. It is, therefore, a continuous right that can be exercised at any time so long as the object of the Will survives. The right to apply would therefore accrue from the date that it becomes necessary to apply. This obviously need not be within three years from the death of the testator. In this case, then, the need to apply would commence from the date when the respondents took actions hostile to the position established by the Will, that is, the execution of a General Power of Attorney by Laxmi Devi, wife of the testator on 8th August 2005. In that view of the matter, the application for probate of Will made by the executor Mr. Bhudeo Prasad Singh, in favour of the appellants Sanjay Sharma @Sanjay Bhardwaj is held to be within limitation since the same was filed 31^st August 2005”.

As regards the other issue relating to Order VII Rule 11 of CPC it is held by the Supreme Court as under:

7. A second issue arises for consideration. We ask a question as to whether under Order VII Rule 11 CPC on an application filed by the objector, it was open for the High Court to return findings that are on the merits of the Will itself. We think not. Whether or not a particular Will is suspicious comments directly upon the sanctity of the Will itself which was not open for the Court to adjudicate in the proceedings, summary in nature without, obviously having appreciated evidence in that regard. The scope of adjudication of an application under Order VII Rule 11(d) is well established”.

In order to further reinforce the dicta, the Supreme Court has also referred to and have applied to a judgment rendered by it on a matter reported as Salim D. Agboatwala v. Shamalji Oddhavji Thakkar, (2021) 17 SCC 100, as follows:

“11. As observed by this Court in P.V. Guru Raj Reddy v. P. Neeradha Reddy [P.V. Guru Raj Reddy v. P. Neeradha Reddy, (2015) 8 SCC 331 : (2015) 4 SCC (Civ) 100] , the rejection of plaint under Order 7 Rule 11 is a drastic power conferred on the court to terminate a civil action at the threshold. Therefore, the conditions precedent to the exercise of the power are stringent and it is especially so when rejection of plaint is sought on the ground of limitation. When a plaintiff claims that he gained knowledge of the essential facts giving rise to the cause of action only at a particular point of time, the same has to be accepted at the stage of considering the application under Order 7 Rule 11.

12. Again as pointed out by a three-Judge Bench of this Court in Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar [Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar, (2018) 6 SCC 422 : (2018) 3 SCC (Civ) 524] , the plea regarding the date on which the plaintiffs gained knowledge of the essential facts, is crucial for deciding the question whether the suit is barred by limitation or not. It becomes a triable issue and hence the suit cannot be thrown out at the threshold.”

Reliance was also placed by the Supreme Court on P. Kumarakurubaran v. P. Narayanan 2025 SCC OnLine SC 975, held that once limitation becomes a question of law and fact, it cannot be dismissed summarily under Order VII Rule 11 proceedings:

“12.1. … Once the date of knowledge is specifically pleaded and forms the basis of the cause of action, the issue of limitation cannot be decided summarily. It becomes a mixed question of law and fact, which cannot be adjudicated at the threshold stage under Order VII Rule 11 CPC. Therefore, rejection of the plaint on the ground of limitation without permitting the parties to lead evidence, is legally unsustainable.”

Therefore, the Supreme Court has adjudicated and have conclusively settled the issue on both these counts i.e  qua Order VII Rule 11 as also the question of limitation itself, and has held that orders of the Courts below were unsustainable and have to be set aside. Accordingly, the orders passed by the ld District Judge, Deoghar as also the Jharkhand High Court was set aside, being erroneous in law and the matter stood restored to the concerned Civil Court to proceed in accordance with law. What follows therefore is that the period of limitation shall not flow from the date of death of the testator, but the cause of action shall be continuous and can be exercised at any time so long as the object of the Will survives. The right to apply would therefore accrue from the date that it becomes necessary to apply. This obviously need not be within three years from the death of the testator.

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                          Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

 

Principles & Procedure of Revocation of Will

 

Principles & Procedure of Revocation of Will

The petition for probate to a will and or letter of administration to a Will is governed by Indian Succession Act 1925 ( In short “ISA”) which is a comprehensive legislation in this regard. The inter play of the provisions of Code of Civil Procedure ( In short “CPC”) and that of ISA has always been intrinsic, however, the ambit and applicability of the respective provisions in a civil suit or petition for probate has always been a topic of deliberation. In this context, as is reflected in the discussion hereinafter, the discussion shall revolve around the fact once a probate to a Will is granted and a challenge is made thereto, by the aggrieved party and revocation of Will is prayed for, by such aggrieved party, what are the course available to a party seeking revocation of Will? Whether the ISA in itself is self-contained and/or principles of CPC shall have applicability or not? Still further, whether after grant of probate proper course shall be to prefer an appeal or the court granting probate itself shall be competent to deal with the application of revocation shall be a moot point. Yet another dimension, in this context will be, as to whether, if evidence is required to be lead, whether application for revocation of Will shall still be maintainable before the same court that granted probate or the other course should be adopted. Yet again, if the party in support of probate to a will is granted and in case such successful party seeks to oppose the application of revocation of Will, whether such application for revocation shall be akin to a civil suit and if so, whether application under Order 7 Rule 11 of CPC shall be maintainable or not? The effort herein is to find out the answers to the situation depicted above through judicial precedents.         

The Bombay High Court in a matter reported as Shaikh Mohammad Azahar Mohammad Gouse vs Ishwar Pralhad in Civil Revision Application no. 728 of 2023 has dealt with the comprehensive principles and procedure of revocation of probate. The revision petition was preferred assailing an Order dated 19^th October 2023 passed by the learned Civil Judge, Senior Division, Pune in CMA No. 645 of 2022, whereby an Application  preferred by the applicant-respondent no.2 under the provisions of Order VII Rule 11 of the Code of Civil Procedure 1908 ("the Code"), came to be rejected.

In order to appreciate the perspective of the case, the memo of party may be perused as under:

Shaikh Mohammad Azahar                      …Applicant

Vs

1. Ishwar Pralhad Dham

2. Ranjit Janu Burte

3. Kishor Ramchandra Khare

4.Bharat Damodar

5.Firoz Gulam Hussain Shaikh

6. Adv B.S Bhele

7. Dr Ramnath Jadhav                     …Respondents

The gravamen of the facts are that one Ashok Chokshi (the Testator) was unmarried and had passed away on 13^th  November 2016 and during his life time, the testator was endowed with movable and immovable properties. The Respondent Nos. 3 and 4 herein had preferred an Application for grant of Probate bearing CMA No. 645 of 2022, in respect of the purported last Will and Testament of the Testator dated 18^th April 2013. As objection came to be filed in the said Probate Application, hence, the said Application was converted into a Suit being SCS No. 1790 of 2021. Thereupon, the Applicant-Defendant No.9 in the said Suit filed a Counter-claim in the said Suit. The Applicant propounded a purported Will dated 28^th October 2016, under which the Testator had appointed the Applicant as an Executor. The Applicant thus prayed for grant of Probate in respect of the said Will dated 28^th  October 2016.

It appears that the plaintiffs conceded that the Will propounded by the Applicant dated 28^th October 2016 was the last Will and Testament of the Testator and the earlier Will dated 18^th April 2013, propounded by them, stood revoked. Thus, by a Judgment and Order dated 16^th November 2021, the learned Civil Judge was persuaded to grant Probate of the Will dated 28^th October 2016 to the Applicant.

                        PLEA OF REVOCATION OF PROBATE

The Respondent No.1 herein filed Civil Misc Application seeking revocation of the Probate under Section 263 of the Indian Succession Act 1925. The respondent No.1 claimed to have worked with the Testator as a housekeeper and caretaker. Under the Will dated 18^th April 2013, respondent no.1 was a beneficiary. Respondent no.3, who was appointed as the Executor under the said Will, gave assurances to the  respondent no.1, that after the Court passes an order granting Probate the bequest in favour of respondent no.1 would be implemented. It was thus averred that the Applicant obtained the Probate on the basis of false and forged documents and hence, the Respondent No.1 prayed for revocation or annulment of the Probate granted in favour of the Applicant.

                APPLICATION UNDER Order VII Rule 11 CPC

It is also a matter of record that in the said Application for revocation of Probate, the applicant filed an Application for rejection of the said Application purportedly under Order VII Rule 11 of the Code, primarily, on the ground that once the Application for Probate is converted into a Suit, the decree passed by the Civil Court granting Probate is amenable to appeal under the provisions of the Code and an Application for revocation of the Probate is not tenable.

The learned Civil Judge was of the view that in terms of Section 263 of the Indian Succession Act, a party could ask for revocation or annulment of Probate where it was obtained fraudulently either by making a false assertion or by concealing material facts. Since respondent no.1 claimed that the purported Will dated 28^th October 2016 is forged and fabricated document, on the strength of which the Probate was obtained, an Application for revocation of Probate was tenable.

In the aforesaid factual matrix, the applicant has invoked the revisional jurisdiction of Bombay High Court. The Bombay High Court was pleased to frame the following issues for determination.

"1) Whether, provisions of Order 7 Rule 11 of the Code of Civil Procedure, 1908 are applicable to the proceedings for revocation of probate under Section 263 of the Indian Succession Act, 1925?

2) What are the parameters for applying Section 141 of the Code of Civil Procedure, 1908 to proceedings under Section 263 of the Indian Succession Act, 1950 in view of judgment in the case of Nalini Navin Bhagwati Vs Chadravadan M. Mehta reported in (1997) 9 SCC 689?"

The following judicial precedents inclusive of the one referred to above has been discussed, deliberated, analysed and findings have been recorded. The judicial precedents in this regard has been specified below:       

LAW

(i) Nalini Navin Bhagwati Vs Chadravadan M. Mehta reported in (1997) 9 SCC 689;

(ii) Vijay Shivram Pathare Vs. City Corporation Limited and Anr (2023) SCC OnLine Bom 721;

(iii) Subal Paul Vs. Malina Paul and Anr (2003)10 SCC 361;

(iv) Deubai Tukaram Pakhare & Ors Vs Muktabai Tukaram Pakhare & Ors  2000(1) MhLJ 511;

(v) Jairam Gurnani Vs Shanta Gurnani ILR (1979)1, Delhi 99;

(vi) Azhar Hussain Vs Rajiv Gandhi, 1986 Supp SCC 315,

(vii) Dahiben Vs Arvindbhai Kalyanji Bhanusali (Gajra) Dead Through Legal Representatives And Ors, (2020) 7, SCC 366;

(viii) Ramesh Nivrutti Bhagwat Vs Dr Surendra Manohar Parakhe (2020) 17 SCC 284

(ix) Hiraman Shankar Khanavkar & ors Vs Nitin Anant Khanavkar Civil Revision Application No. 481/2023 ( Bombay High Court)

 

                        SUBMISSIONS OF RESPONDENT NO.1

As in Shaikh Mohammad Azahar (Supra), the issue of maintainability of an application for rejection of a proceeding for revocation of probate, under Order VII Rule 11 of the Code was raised, hence, it was deemed apposite to take note of the following submissions:

(1)    Heavy reliance was placed on the judgment of Supreme Court in the case of Nalini Navin Bhagwati (supra). It was argued that the controversy is no longer res integra and in the above case, the Supreme Court has enunciated that the application for revocation of probate or letters of administration need not be treated as a suit as contemplated under Section 295 of the Indian Succession Act and that the procedure required under Section 295 need not be adopted for disposal of the application filed under Section 263 for revocation of the probate or letters of administration. It would be treated as a Miscellaneous Application and disposed of by the District Judge either summarily or by recording evidence, according to the fact - situation of the given case.

(2)    Once the proceeding under Section 263 of the Indian Succession Act 1925 is construed as a miscellaneous application, and not a substantive suit, recourse to the provisions contained in Order VII Rule 11 of the Code is not at all warranted. The said provisions are clearly inapplicable to Miscellaneous Application.

(3)    The provisions as contained in section 141 of CPC was referred, to canvas that the provisions contained in Section 141 of the Code are enabling in nature and do not mandate that the procedure provided in the Code be followed in all proceedings before the Civil Court as Section 141 of the Code makes it abundantly clear that the procedure prescribed in the Code be followed as far as it can be made applicable. The provisions contained in Order VII Rule 11 of the Code, cannot at all be made applicable to a proceeding under Section 263 of the Indian Succession Act, 1925, as it confers a statutory right upon an aggrieved person to seek revocation of probate or letters of administration. Such statutory right cannot be interdicted by filing an application under Order VII Rule 11 of the Code. Lest the provisions contained in Section 263 of the Indian Succession Act would be rendered nugatory.

(4)    The reliance was placed on an order passed by a learned Single Judge of Bombay High Court in Civil Revision Application No. 481 of 2023 dated 10^th November 2023, wherein, it was held in clear terms that the provisions contained under Order VII Rule 11 of the Code do not apply to an application for revocation of heirship certificate issued under the provisions of the Bombay Regulation Act, 1827.

                        SUBMISSIONS OF THE APPLICANT

(1)    A plain reading of the provisions contained in Section 141 of the Code (CPC) in conjunction with the provisions contained in Section 295 and 263 of the Indian Succession Act, does not rule out the applicability of the provisions contained in Order VII Rule 11 of the Code to a proceeding for revocation of the probate or letters of administration, under Section 263 of the Indian Succession Act, 1925.

(2)    The proceeding under Section 263 of the Act, 1925 falls within the ambit of the term 'Proceedings" under Section 141 of the Code. Secondly, the said proceeding is undoubtedly before a Civil Court. Thirdly, the qualifying expression in Section 141 namely "as far as it can be made applicable" cannot be so construed as to make the provisions of the Code inapplicable to such proceeding, in the absence of any indication to the contrary.

(3)    The corer question that arose for consideration in the case of Nalini Navin Bhagwati (supra) was, can an application filed under Section 263 of the Act, 1925 be treated as a contentious suit as envisaged by Section 295 of the Act, 1925. The decision in the case of Nalini Navin Bhagwati (supra), therefore cannot be said to be an authority for the proposition that an application under Order VII Rule 11 of the Code for rejection of the proceeding under Section 263 of the Act, 1925, is not at all maintainable.

(4)    That moreover, this very question has been dealt with by another learned Single Judge of Bombay High Court in the case of Vijay Shivram Pathare Vs. City Corporation Limited and Anr (2023) SCC OnLine Bom 721, wherein, an objection to the tenability of an application for rejection of a proceeding under Section 263 of the Act 1925, based on the decision of the Supreme Court in the case of Nalini Navin Bhagwati (supra) was repelled by the learned Single Judge.

(5)    Though the said decision in the case of Vijay Shivram Pathare (supra) was rendered prior in point of time, the same was not brought to the notice of the learned Single Judge in the case of Hiraman Shankar Khanavkar (Supra)  and, therefore, the subsequent decision in the case of Hiraman Shankar Khanavkar (supra) without noticing an earlier decision of the co- ordinate bench cannot command precedential value.

(6)    Emphasis was laid on the object of the provisions contained in Order VII Rule 11 of the Code to urge that , if a wholly sham and vexatious proceeding under Section 263 of the Act 1925 is filed, it cannot be said that the Court has no power to dismiss such proceeding at the very threshold.

(7)    Reliance was also placed on a judgment of Supreme Court in the case of Subal Paul Vs. Malina Paul and Anr (2003)10 SCC 361 wherein in the context of the tenability of an appeal against judgment delivered by the Single Judge under Section 299 of the Act, 1925 before the Division Bench, the Supreme Court had enunciated that the order passed by the Court under Section 299 of the Act, 1925 though may not be stricto sensu a decree within the meaning of Section 2(2) of the Code of Civil Procedure Code, but, it is beyond any cavil that the same would be a judgment within the meaning of Section 2(9) thereof.

(8)    To draw an analogy it was further canvassed that when a proceeding under Section 263 of the Act, 1925 is filed to revoke a probate or letters of administration based on such judgment, the non-existence of the cause of action or any other bar to the tenability of such application, must be dealt with at the threshold and such a proceeding can be rejected by invoking the power under Order VII Rule 11 of the Code.

The nature of the proceeding under Section 263 of the Act, 1925 may be noted. Section 263 reads as under:

"263. Revocation or annulment for just cause-

The grant of probate or letters of administration may be revoked or annulled for just cause.

Explanation. --Just cause shall be deemed to exist where-

(a) the proceedings to obtain the grant were defective in substance; or

(b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or

(c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or

(d) the grant has become useless and inoperative through circumstances; or

(e) the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect.

It is evident from the bare recitals of the provisions as contained in Section 263 of Indian Succession Act 1925 that the grant of Probate or Letters of Administration may be revoked, if the proceedings to obtain the grant were, "defective in substance", or the grant was obtained fraudulently by making a false suggestion or by suppressing from the Court something material to the case or if the grant was obtained by means of untrue allegations or if the grantee has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of Part IX.

It is to be also noted that Section 263 of the Act vests a judicial discretion in the Court to revoke or annul the grant for "just cause". The Explanation to Section 263 enumerates the circumstances in which the Court may legitimately draw an inference that a just cause to revoke the grant has been made out. It is trite, the onus rests on the person who seeks the revocation of the grant to show that a just cause for revocation exists.

In a sequel to above, it is also worthwhile to note the provisions contained in Section 141 of the Code It reads as under:

"141. Miscellaneous proceedings -

The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

[Explanation .-In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under article 226 of the Constitution.]

A plain reading of the aforesaid section would indicate that the procedure in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. By insertion of the Explanation, it has been clarified that the expression "proceedings" includes proceedings under Order IX of the Code, but does not include any proceeding under Article 226 of the Constitution.

For the applicability of the procedure provided in the Code two conditions are primarily required to be satisfied. First, it ought to be a "proceeding" within the meaning of Section 141 of the Code. Second, such proceeding ought to be before any court of civil jurisdiction. If these two conditions are satisfied then the provisions in the Code can be made applicable to such proceeding before the civil court, as far as it can be made applicable. A cumulative reading of Section 4 and Section 141 of the Code would thus imply that unless there is a special form of procedure prescribed by or under any other law for the time being in force for a proceeding before the civil court, ordinarily, the procedure provided by the Code can be made applicable as far as possible.

The expression, "proceeding" is defined in Black's Law Dictionary as, "The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment." The expression "Proceedings" in Section 141 of the Code appears to be of wide connotation. The Explanation, appended to Section 141 clearly indicates that it is an inclusive definition. What is expressly included in the Explanation is not exhaustive of the term, "proceedings", rather illustrative and inclusive. Thus, a proceeding filed under Section 263 of the Act 1925 for revocation of probate or letters of administration falls within the ambit of the term "proceeding" under Section 141 of the Code.

The import of the term "a court of civil jurisdiction" under Section 7 of the Maharashtra Civil Courts Act 1869, the District Court shall be the principal Court of original civil jurisdiction in the District, within the meaning of the Code of Civil Procedure. Under Section 28A of the said Act of 1869, the High Court may by general or special order invest any Civil Judge within such local limits and subject to such pecuniary limitation as may be prescribed in such order, with all or any of the powers of a District Judge or a District Court as the case may be under the Indian Succession Act 1925. In exercise of the powers conferred by Section 28A(1) of the said Act of 1869, the High Court has invested all Civil Judges (Senior Division), with all the powers of a District Judge to take cognizance of any contested proceeding under Indian Succession Act 1925, arising within the local limits of their respective jurisdiction that may be transferred to them by their respective District Judges.

The Bombay High Court held that the aforesaid provisions thus indicates that a court dealing with the matters, under the Indian Succession Act, 1925 is the court of civil jurisdiction. Thus, both the Tests of the "proceeding", and "court of civil jurisdiction" stand satisfied in relation to a proceeding under Section 263 of the Act of 1925.

Extent of applicability of CPC

So far as the extent of the applicability of provisions of CPC, especially, Order VII Rule 11 to a proceeding under Section 263 of the Act of 1925 are concerned, in the context of the qualifying expression , "as far as it can be made applicable." Makes it abundantly clear. In Nalini Navin Bhagwati (supra) case the probate was granted on 16^th January 1967. The Appellants therein filed an Application to revoke the Probate. A prayer to convert the said Revocation Application into a Suit was rejected by the City Civil Court. The High Court directed to treat the Application for Revocation as a Suit filed under Section 295 of the Act of 1925. On Appeal, the Supreme Court was confronted with a question; whether the Application for Revocation of the Probate would be treated as a Suit under Section 295 of the Act of 1925 ? The observations of the Supreme Court in paragraph 7 are material and, hence, extracted below:

"7. But when the grant of probate or letter of administration is sought to be revoked, it is not clear what nomenclature would be ascribed to it and what procedure would be adopted for its disposal. Take for instance a situation when the suit is decreed ex parte. Order IX Rule 13 provides for making of an application to set aside the decree on proof of certain grounds ex parte decree gets set aside. Similarly when the suit was dismissed for default, under Order IX Rule 9 an application would be filed and on proof of the circumstances for absence, the order would be set aside and suit would get restored. Similarly, when probate or letter of administration is granted and it is sought to be revoked, Section 263 provides for the grounds on the basis of which it would be revoked. When the grounds are sought to be proved, the question is whether such an application would be treated to be a suit? We are of the considered view that an application to revoke probate or letter of administration would be treated as miscellaneous application and may be disposed of on the fact situation in an appropriate case either summarily or after recording evidence. The application to revoke the probate or letter of administration thus may be disposed of by the District Judge either summarily or in a given situation where it requires proof of the facts by adduction of evidence by the parties by recording such evidence as is adduced by the parties. The burden will be on the applicant to prove the facts to revoke the probate or letter of administration and the respondent who obtained probate or letter of administration has to disprove the contentions of the applicant. In that situation, based upon the given facts situation, it will be for the Court to dispose it of either summarily or after giving opportunity to both the parties to adduce evidence and consideration thereof. Under these circumstances, it is not necessary that the application for revocation of the probate or letter of administration would be treated as a suit as contemplated under Section 295 of the Act. If the contention of Shri Puri merits acceptance, then any proceedings under the application to revoke the probate or letter of administration should be treated as a suit: the applicant cannot prove the will and at the same time cannot contend that the will was not validly executed. Therefore, it would be self contradictory to adopt such a procedure. Accordingly, we are of the view that the procedure required under Section 295 need not be adopted for disposal of the application filed under Section 263 for revocation of the probate or the letter of administration. It would be treated as miscellaneous application and disposed of as indicated earlier according to the given fact situation”.

In an analogous condition, the ld single judge of Bombay High Court came in Narbheram Jivaram Purohit vs Jevallabh Harijivan (1933) 35 Bom LR 998 has held that the proper procedure for revocation of probate granted by the High Court is by way of a petition filed in the testamentary and intestate jurisdiction of the Court, and not by way of suit in its Ordinary Original Civil Jurisdiction. In other words, the Court indicated that it need not be treated as a suit on the original side of the Court, but it could be disposed of as an application independent of the suit.

The Supreme Court has in terms enunciated that the Application for Revocation of Probate or Letters of Administration would be treated as Miscellaneous Application and may be disposed either summarily or after recording the evidence. It is not necessary that a proceeding to revoke the Probate or Letters of Administration would be treated as a Suit as prescribed under Section 295 of the Act of 1925.

However, the moot point is, whether the aforesaid pronouncement can be construed to render the provisions of Order VII Rule 11 of the Code inapplicable to a proceeding filed under Section 263 of the Act of 1925, for the reason that the said proceeding is not to be treated as a Suit?.

The Bombay High Court in Shaikh Mohammad (Supra) has held as under: 

“39. On a fair reading of the aforesaid observations of the Supreme Court, in my considered view, such an inexorable inference is not deducible. The aforesaid decision is an authority for the proposition that such a proceeding under Section 263 of the Act 1925 need not be treated as a Suit. It, however, does not necessarily justify a further inference that the provisions contained in Order VII Rule 11 of the Code need not be made applicable to such proceeding. The submission that if the proceeding is not treated as a Suit, the provisions contained in Order VII Rule 11, which empowers the Court to reject the Plaint, are not attracted, appears to be fallacious”.

In the case of Vijay Shivram Pathare (supra), a learned Single Judge of Bombay High Court after adverting to the aforesaid pronouncement, observed as under:

"18. In my reading of the decision, before the Apex Court, the issue of applicability of the provisions of Civil Procedure Code 1908 was not under consideration. The Apex Court was dealing with a fact situation wherein an application was filed to revoke the probate and prayer was made to convert the application into a regular suit. It will be worthwhile to note that the Apex Court has observed in paragraph 7 that the application to revoke the probate or letter of administration thus may be disposed of by the District Judge either summarily or in a given situation where it requires proof of the facts by adducing evidence by the parties by recording such evidence as is adduced by the parties. In my opinion, the decision of Apex Court is not an authority for the proposition that the provisions of Civil Procedure Code 1908 are not applicable to an application for revocation."

As far as reliance on Hiraman Shankar Khanavkar (supra) is concerned that does not seem to advance the cause of the submission of Respondent No.1, as the said judgment was rendered in a slightly different fact-situation. In the said case an Application for Revocation of Heirship Certificate was filed and the Applicants therein had sought rejection of the said Application for Revocation, under Order VII Rule 11 of the Code. It is trite, the grant of Heirship Certificate does not determine the proprietary rights of the parties. Heirship Certificate does not confer status of an heir. It merely recognize such status. Secondly, in the said case, the decision of the Bombay High Court in the case of Vijay Shivram Pathare (supra) was not considered.

Moreover, as per the Bombay High Court in Shaikh Mohammad (Supra), since the decision in the case of Vijay Shivram Pathare (supra) was rendered prior in point of time, the co-ordinate Bench in Hiraman Shankar Khanavkar (supra) was bound by the said decision and thus the decision in the case of Hiraman Shankar Khanavkar (supra), does not command precedential value.

Various provisions of the Code have been held applicable to the proceedings under the ISA 1925 and other special enactments. In the case of Deubai Tukaram Pakhare & Ors Vs Muktabai Tukaram Pakhare & Ors  2000(1) MhLJ 511 the provisions contained in order VI Rule 17 of the Code were held applicable to the proceeding under Section 373 of the Act of 1925. In the case of Jairam Gurnani Vs Shanta Gurnani ILR (1979)1, Delhi 99, the Delhi High Court has held that the provisions contained in the Code were applicable to the proceedings under the Guardians and Wards Act, in view of the provisions contained in Sections 4 and 141 of the Code.

The matter can be looked at form a slightly different perspective. The object of the provisions contained in Order VII rule 11 is to nip in the bud a vexatious and abortive proceeding. Its object is to save the precious judicial time which would otherwise be wasted in dealing with a proceeding which is ex-facie sans cause of action or barred by any provision of law. It serves the cause of public justice by throwing out sham and unwarranted proceeding.

In the case of Azhar Hussain Vs Rajiv Gandhi, 1986 Supp SCC 315, the purpose of conferment of power to reject the Plaint was expounded as under:

"12. ...The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the court, and exercise the mind of the respondent. That sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinarily civil litigation, the court readily exercises the power to reject a plaint, if it does not disclose any cause of action."

In the case of Dahiben Vs Arvindbhai Kalyanji Bhanusali (Gajra) Dead Through Legal Representatives And Ors, (2020) 7, SCC 366; the object of Order VII Rule 11 was enunciated as under:

"The underlying object of Order 7 Rule 11(a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11(d), the court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted."

If a proceeding for Revocation under Section 263 of the Act of 1925 is shown to be ex-facie without any locus or cause of action or otherwise barred by law, it cannot be said that the Court is denuded of the power to stop such proceeding at the threshold and must decide such proceeding after a long drawn hearing or trial. Such an interpretation would defeat the very object of investing jurisdiction in  Testamentary Court to revoke the Probate or Letters of Administration for a just cause.

It is further held in Shaikh Mohammad (Supra):

“48. It is well recognized that the period of limitation prescribed in Article 137 of the Schedule to the Limitation Act 1963 applies to a proceeding for revocation of the Probate or Letters of Administration under Section 263 of the Act of 1925. If a proceeding for revocation of the Grant of Probate or Letters of Administration is shown to be clearly beyond the period of limitation from the date of the accrual of the cause of action, such a proceeding must be rejected at the threshold. The provisions contained in Order VII Rule 11(d) would have clear application to such a situation. Merely because the proceeding under Section 263 of the Act of 1925 partakes the character of Miscellaneous proceeding and not a Suit, it cannot be insulated from the operation of Order VII Rule 11”.

In this context it may be of pertinence to refer to the judgment of the Supreme Court in the case of Ramesh Nivrutti Bhagwat Vs Dr Surendra Manohar Parakhe (2020) 17 SCC284, wherein it was enunciated that the residuary entry Article 137 in the Schedule to the Limitation Act, 1963 covers proceedings for Revocation of the Probate or Letters of Administration and the Petition for Revocation of Letters of Administration filed beyond the said period of three years was clearly  time barred and, thus, was rightly rejected by the Courts by allowing the Application for rejection of the said Petition for Revocation.

It was thus held in Shaikh Mohammad (Supra), as under:

“50. The conspectus of the aforesaid consideration is that there is no justifiable reason not to apply the provisions contained in Order VII Rule 11 of the Code to a proceeding under Section 263 of the Act of 1925. I am, therefore, impelled to held that the provisions contained in Order VII Rule 11 are applicable to a proceeding for Revocation of Probate”.

51. As far as the parameters for applying Section 141 of the Code to the proceeding under Section 263 of the Act 1925, in my view, the law enunciated by the Supreme Court in the case of Nalini Navin Bhagwati (supra) illuminates the path. If the Court decides to determine the proceeding under Section 263 of the Act 1925 in a summary manner, all the provisions of the Code do not become applicable to such a proceeding. On the other hand, if in the given fact-situation, the Court considers that the issues are required to be determined by providing an opportunity to adduce evidence, then, the provisions of the Code which govern the procedure of trial, wherein evidence is recorded, can be made applicable. No straight jacket formula as to the applicability of the particular provision of the Code can be laid down. The applicability of the provisions of the Code to a proceeding under Section 263 of the Act of 1925 would hinge upon the fact-situation of the given case”.

In the present case, the rejection of the Application for Revocation of Probate was sought on the ground that the decree passed by the Civil Court granting Probate is amenable to an Appeal under the provisions of the Code and, thus, the Application for Revocation was not tenable. The submission was held to be untenable. Section 263 of the Act of 1925, as noted above, empowers the Testamentary Court to revoke the Grant of Probate or Letters of Administration for a just cause. The said remedy is independent of the right of an aggrieved party to prefer an Appeal against the order granting Probate. The existence of the remedy of Appeal, does not take away the right of an aggrieved person to seek revocation of Probate or Letters of Administration, provided he succeeds in establishing a just cause for the same. Since, in the present case, the civil Court has granted the Probate by a judgment and order dated 16^th November 2021. The Application for Revocation of the Probate came to be filed on 15^th  March 2022. The Application is, evidently, within the statutory period of limitation.

It is trite, while considering the Application for rejection of the Plaint, the Court can only examine the averments in the Plaint and the documents annexed thereto. The defence of the Defendant is totally irrelevant. If on a meaningful reading of the Plaint, the Court finds that there is no cause of action or the relief claimed is otherwise barred by any law, then only a Plaint can be rejected.

On the aforesaid touchstone, if the averments in the Application for Revocation of the Probate are considered, it becomes evident that the Applicant has made assertion which prima facie fall within the ambit of Clauses (b) and (c) of the Explanation to Section 263 of the Act of 1925.

The peculiar circumstances in which the Probate came to be granted deserve to be noted. Initially, Respondent Nos. 3 and 4 herein had preferred an Application for grant of Probate propounding a registered Will of the Testator dated 18^th April 2013. The Applicant filed objection and a counter-claim. The Applicant propounded the Will dated 28^th  October 2016. It seems, later on, Respondent Nos. 3 and 4, the Plaintiffs in the Probate Proceeding, conceded that the Will propounded by the Applicant dated 28^th April 2016 was the last Will and Testament of the Testator and the prior Will dated 18^th  April 2013 stood revoked. From the perusal of the order passed by the learned Civil Judge dated 16^th November 2021 it becomes evident that there was no contest as the contents of the counter-claim and the evidence adduced by Applicant-Defendant No.9 and his witnesses had gone unchallenged. It is in this context the Respondent No.1 alleges that the said Probate was obtained in collusion by the Applicant, Respondent Nos. 3 and 4, the propounder of the prior Will, and Respondent No.2, Ranjit Burte, who was shown as the attesting witness.

Again, a perusal of the Will dated 28^th October 2016, prima facie, indicates that there is a reference to the nephews and nieces of the Testator who were then residing in America. The Application preferred by Respondent Nos. 3 and 4 indicates that those heirs of the testator were impleaded as Defendant Nos. 2 to 7 to the said Application. It becomes abundantly clear that neither the Applicant herein, nor Respondent Nos. 3 and 4, nor for that matter, Respondent No.2, Ranjit Burte, who had also propounded another Will dated 25^th January 2016, were related to the Testator. All claimed to have worked for the Testator in one or the other capacity. This backdrop of none of these parties being even remotely related to the Testator and, conversely, there were other heirs of the Testator, who were stated to be residing in America also needs to be kept in view.

In para 60 & 61 of Shaikh Mohammad (Supra), it is observed as under:

60. In the aforesaid backdrop the averments in the application for Revocation were required to be appreciated albeit prima facie, to ascertain whether a case for rejection of the application, was made out. Apart from the allegations that the Will dated 28^th October 2016 propounded by the Applicant is false and fabricated, the Respondent  No.1 has specifically asserted that in the very Will, the Testator purportedly made grave allegations against Ranjit Burte, Respondent No.2 and, yet, the said Ranjit Burte has been shown to have attested the said Will. Respondent No.1 has also alleged that to the said Will a copy of the driving license of Ranjit Burte is annexed; which shows that the said license was issued on 6th July 2017 well after the purported execution of the said Will on 28th October 2016. The Testator passed away on 13^th November 2016; under two weeks of the execution of the Will in question. The intrinsic evidence of the Will also indicates that the Testator was suffering from Alzheimer and mental illness since the year 2002”.

61. The assertions in the application for Revocation of the Probate are required to be appreciated in the light of the all these factors. It is more so, for the reason that a Testamentary Court is a Court of conscience. If viewed through this prism, it would be rather difficult to draw an inference that the Application for revocation is devoid of substance and deserves to be rejected at threshold. It is an altogether different matter, whether the Applicant would succeed in demonstrating that a just cause for Revocation of probate is made out. That would be a matter for consideration by the Trial Court by adopting the procedure which it considers appropriate in the fact-situation of the case”.

Resultantly, it was held that the learned Civil Judge was justified in rejecting the application for rejection of the proceeding under Section 263 of the Act, 1925 and for going ahead with the case for seeking revocation of the probate.

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                        Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com