As per case facts, a Probate and Succession Case was initially filed in 2014 for letters of administration regarding a will from 1997, with the testator dying in 2005. Letters ...
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12
TH
DAY OF MARCH, 2026
BEFORE
THE HON’BLE MR.JUSTICE R. DEVDAS
CIVIL REVISION PETITION NO.550 OF 2025
C/W
WRIT PETITION NO.7348 OF 2025 (GM-CPC)
IN CRP No.550 OF 2025
BETWEEN
SMT. ANNIE THOMAS
D/O.LATE K.V.MAMMEN
AGED ABOUT 60 YEARS,
R/O NO.507, GROUND FLOOR,
8
TH
BLOCK, 1
ST
MAIN,
KORAMANGALA
BENGALURU-560 095
...PETITIONER
(BY SRI. REUBEN JACOB., SR. COUNSEL FOR
SRI. HARISH N.R., ADVOCATE)
AND
1 . SRI GEORGE MAMMEN
S/O.LATE K.V.MAMMEN
AGED ABOUT 59 YEARS,
R/O. NO.3403, WENTWORTH WAY
HIGHLAND VILLAGE
TEXAS, 75077
UNITED STATS OF AMERICA
REP. BY HIS GPA HOLDER
R
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SRI.JOSE KOSHY
S/O.LATE.V.J.KOSHY
AGED ABOUT 57 YEARS
R/O.TP1 HARMONEY HOMES
4/2 HENNUR MAIN ROAD,
HRBR LAYOUT,
BENGALURU-560 043.
2 . SMT RENNIE JOSHI
W/O.KURIAN PUTHUR
AGED ABOUT 54 YEARS
VSRRA NO. 14. 1
ST
AVENUE
33/1844/E, SHOBHA ROAD
VENNALA, KOCHIEN,
KERALA-692028.
…RESPONDENTS
(BY SMT. ANUSHA G.N., ADVOCATE FOR R2
SRI. MURUGESH RAMAIAH A/W
SMT. PRIYA V.B.SHETTAR., ADVOCATE FOR R1)
THIS CRP IS FILED UNDER SECTION 115 OF CPC,
PRAYING TO SET ASIDE THE ORDER DATED 16.06.2025
PASSED ON I.A.NO.I IN OS.NO.25752/2024 ON THE FILE
OF THE 74
TH
ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, MAYOHALL UNIT, BENGALURU (CCH 75) AND ETC.
IN W.P.NO.7348 OF 2025
BETWEEN
MR. GEORGE MAMMEN
AGED ABOUT 60 YEARS
R/A 3403, WENTWORTH WAY,
HIGH LAND VILLAGE, TEXAS,75077,
UNITED STATES OF AMERICA.
REP. BY HIS GPA HOLDER
MR. JOSE KOSHY
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S/O LATE V.J KOSHY,
AGED ABOUT 57 YEARS
R/A TP1 HARMONEY HOMES,
4/2 HENNUR MAIN ROAD,
3
RD
HRBR LAYOUT, BANGALORE 560043.
...PETITIONER
(BY SRI. MURUGESH RAMAIAH A/W
SMT. PRIYA V.B.SHETTAR., ADVOCATES)
AND
…RESPONDENTS
(BY SRI. JAJI GEORGE, ADVOCATE FOR R1
SMT. ANUSHA G.N., ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT
THE LEARNED LXXIV ADDL. CITY CIVIL AND SESSIONS
JUDGE, MAYO HALL, BENGALURU (CCH 75) TO
EXPEDITIOUSLY DISPOSE P & SC NO.25001/2014
CONVERTED TO O.S. NO.25752/2024 IN A TIME BOUND
MANNER IN THE INTEREST OF JUSTICE AND ETC.
1 . MS. ANNE THOMES
D/O LATE K.V MAMMEN,
AGED ABOUT 56 YEARS,
R/AT 507, GROUND FLOOR,
8
TH
BLOCK, 1
ST
MAIN
KORAMANGALA,
BENGALURU 560095.
2 . MRS. RENNIE JOSHI
W/O KURAN PUTHUR,
AGED ABOUT 54 YEARS,
VSRRA NO.14, 1
ST
AVENUE,
33/1844/E, SHOBHA ROAD,
VENNALA, KOCHIN
KERALA-692028.
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THESE PETITIONS HAVING BEEN HEARD AND
RESERVED ON 03.02.2026 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS, THIS DAY, THIS COURT
MADE THE FOLLOWING:
CORAM:
HON'BLE MR JUSTICE R DEVDAS
CAV ORDER
(PER: HON'BLE MR JUSTICE R DEVDAS)
This Civil Revision Petition is filed by defendant
No.1 in O.S.No.25752/2024, being aggrieved of the
impugned order dated 16.06.2025, whereby
application filed by defendant No.1 under Section 137
of Limitation Act (should be read as ‘Article 137’)
seeking rejection of the plaint, was dismissed by the
trial court.
2. For the sake of convenience, the parties
shall be referred to in terms of their ranking before
the trial court.
3. Undisputed facts are that the plaintiff had
filed P & SC No.25001/2014 on 08.01.2014 seeking
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grant of letters of administration with regard to the
last Will and testament dated 25.07.1997 executed by
late Sri K.V.Mammen, the father of the plaintiff,
invoking Section 278 of the Indian Succession Act,
1925. The petition was allowed and letters of
administration were granted to the petitioner therein
by order dated 16.12.2015. However, one of the
sisters of the plaintiff Mrs.Annie Thomas raised a
challenge to the orders passed in P & SC
No.25001/2014 by filing another petition in P & SC
No.25025/2019 and the court revoked the letters of
administration granted to the plaintiff, by order dated
06.11.2023 and restored P & SC No.25001/2014 and
directed to the parties to appear in the said case
without waiting for further notice. The Probate an d
Succession Case was converted into original suit in
O.S.No.25752/2024. Defendant No.1 filed written
statement and raised the issue of limitation and
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thereafter filed an application in I.A.No.1 seeking
rejection of the plaint on the ground that the suit is
barred by limitation. It was contended by defendant
No.1 that the provisions of the Limitation Act are
applicable to probate proceedings and having regard
to the residuary provision in Article 137 of the
Limitation Act, a petition for grant of letters of
administration should be filed within a period of three
years from the date of death of the testator.
4. The trial court rejected the application on
the ground that such an application filed under
Section 151 of CPC r/w Article 137 of the Limitation
Act cannot be entertained for the relief of rejection of
plaint. Moreover, the issue regarding limitation, in the
facts and circumstances of the case is a mixed
question of law and facts and therefore the plaint
cannot be rejected.
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5. Learned Senior Counsel Sri Reuben Jacob,
appearing for defendant No.1 submitted that a
judgment of the Division Bench of this Court in the
case of Sri Nanjavudootha Swamiji vs. Sri
S.Linganna and others
1
and a judgment of the
Supreme Court in the case of Nikhila Divyang
Mehta and another vs. Hithesh.P.Sanghvi and
others 2025
2
, were cited before the trial court. The
learned counsel would further submit that the Hon’ble
Supreme Court in the case of Kunvarjeet Singh
Khandpur vs. Kirandeep Kaur and others
3
, has
held that Article 137 of the Limitation Act, 1963 will
apply to any petition or application filed under any Act
to a civil court. It was held that an application under
Sections 276, 278 and Section 264 for grant or
revocation of probate or letters of administration is
covered by Article 137 of Limitation Act. Learned
1
OSA No.9/2024 dated 12.12.2024
2
SCC OnLine SC 779
3
(2008) 8 SCC 463
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counsel submitted that in subsequent judgments of
the Hon’ble Supreme Court in the case of Ramesh
Nivrutti Bhagwat vs. Dr.Surendra Manohar
Parakhe
4
and in the case of Sameer Kapoor and
Anr. vs. State and Ors.
5
, the said position of law is
reiterated. That being the position, learned counsel for
defendant No.1 submits that the trial court has fallen
in error in not allowing the application in I.A.No.1 and
not rejecting the plaint.
6. Insofar as the contention of the learned
Counsel for plaintiff that since the defendant has filed
the application seeking rejection of the plaint under
Section 151 of the CPC read with Section 137 of the
Limitation Act, and had submitted that such a
provision will not empower the Court to reject the
plaint, learned Senior Counsel for the defendant
submitted that mere quoting of a wrong provision will
4
(2020) 17 SCC 284
5
(2020) 12 SCC 480
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not debar the Court from considering the prayer made
therein. In that regard, learned Senior Counsel placed
reliance on P.K.Palanisamy Vs. N.Arumugham and
Another
6
where the Apex Court held that only
because a wrong provision was mentioned by the
appellant the same, by itself would not be a ground to
hold that the application was not maintainable or that
the order passed thereon would be a nullity. It was
further held that it is a well settled principle of law
that mentioning of a wrong provision or non
mentioning of a provision does not invalidate an order
if the Court and/or statutory authority had the
requisite jurisdiction therefor. The Apex Court also
took note of a decision in the case of N.Mani Vs.
Sangeetha Theatre (2004) 12 SCC 278 where it
was held as follows at paragraph 29:
6
(2009) 9 SCC 173
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“29. In N. Mani v. Sangeetha Theatre
[(2004) 12 SCC 278] it is stated : (SCC p.
280, para 9)
9. It is well settled that if an authority
has a power under the law merely
because while exercising that power
the source of power is not specifically
referred to or a reference is made to a
wrong provision of law, that by itself
does not vitiate the exercise of power
so long as the power does exist and
can be traced to a source available in
law.”
7. Learned Senior Counsel therefore submitted
that when the parties have understood the provision
under which the relief is sought and the Court too has
considered the prayer accordingly, although rejecting
the application on other grounds, the contention
raised on behalf of the learned Counsel for the plaintiff
ought to be rejected.
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8. Learned counsel for the plaintiff sought to
support the impugned order passed by the trial court.
Learned counsel submitted that the application in
I.A.No.1 is filed invoking Section 137 of the Limitation
Act (which should be read as ‘Article 137’) seeking
rejection of the plaint and the trial court has rightly
rejected such an application which does not empower
the court to reject the plaint, when a specific provision
under Order VII Rule 11 of the CPC enables rejection
of plaint, only on certain grounds. Moreover, the only
surviving witness to the disputed Will is required to be
examined and cross-examined and at this stage such
an application is filed, only with an ulterior motive, to
prolong the case.
9. Heard the learned counsel for defendant
No.1, learned counsel for the plaintiff and perused the
petition papers.
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10. It is noticeable that in case of Kunvarjeet
Singh (supra), the issue considered was similar to the
one on hand. The petition under Section 278 of the
Succession Act, 1925 for grant of Letters of
Administration was filed on 07.08.2002, while the
testator had expired on 05.10.1995. The defendant
has raised similar objection that the petition was time
barred, having regard to Article 137 of the Limitation
Act. However, it was noticed that one of the
claimants had earlier filed a probate petition in the
year 1996 and the same was withdrawn on
09.08.1999. Thereafter, the petition for grant of
letters of administration was filed on 07.08.2002,
within the period of three years. The Apex Court
noticed a decision of the Madras High Court in the
case of S.Krishnaswami vs. E.Ramiah
7
and
7
AIR 1991 Mad 214
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extracted paragraph No.17 of the said judgment,
which reads as follows:
“17. In a proceeding, or in other words, in an
application filed for grant of probate or letters of
administration, no right is asserted or claimed 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. An assessment
of the relevant provisions of the Indian
Succession Act, 1925 does not convey a
meaning that by the proceedings filed for grant
of probate or letters of administration, no rights
of the applicant are settled or secured in the
legal sense. The author of the testament has
cast the duty with regard to the administration
of his estate, and the applicant for probate or
letters of administration only seeks the
permission of the court to perform that duty.
There is only a seeking of recognition from the
court to perform the duty. That duty is only
moral and it is not legal. There is no law which
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compels the applicant to file the proceedings for
probate or letters of administration. With a view
to discharge the moral duty, the applicant seeks
recognition from the court to perform the duty.
It will be legitimate to conclude that the
proceedings filed for grant of probate or letters
of administration is not an action in law. Hence,
it is very difficult to and it will not be in order to
construe the proceedings for grant of probate or
letters of administration as applications coming
within the meaning of an ‘application’ under
Article 137 of the Limitation Act, 1963.”
11. Nevertheless, it was held that though the
nature of the petition has been rightly described by
the High Court, however 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, having regard to the law laid
down in Kerala SEB vs. T.P. Kunhaliumma
8
. The
8
(1976) 4 SCC 634
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same position is reiterated in Sameer Kapoor
(supra) in paragraph No.17 which reads as follows:
“17. Therefore, considering the law laid
down by this Court in Kunvarjeet Singh
Khandpur [Kunvarjeet Singh
Khandpur v. Kirandeep Kaur, (2008) 8 SCC
463] , it can be said that in a proceeding, or in
other words, in an application filed for grant of
probate or letters of administration, no right is
asserted or claimed 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. As held by this Court
in Kunvarjeet Singh Khandpur [Kunvarjeet
Singh Khandpur v. Kirandeep Kaur, (2008) 8
SCC 463] : (SCC p. 468, para 15)
“15. … ‘16. … (c) … an application [for grant
of probate or letters of administration] is for
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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.’ [Ed.: As observed in Vasudev
Daulatram Sadarangani v. Sajni Prem Lalwani,
1983 SCC OnLine Bom 54, para 16.] ”
(emphasis supplied)
Therefore, even if the will is probated by any
court mentioned in Section 228 of the Act, 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.”
12. However, in paragraph No.18 in Sameer
Kapoor (supra) the application of the law having
regard to the facts of the case it was held as follows:
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“18. Applying the law laid down by this
Court in the aforesaid decision and the
observations made hereinabove, the
submission on behalf of the appellants that
Probate Case No. 15 of 2001 filed by
Respondent 2 for letters of administration
under Section 228 of the Act, read with
Section 276 of the Act is barred by law of
limitation, cannot be accepted. At this stage,
it is required to be noted that even in the
plaint, it is specifically pleaded that after
passing away of the father of the parties in
the year 2000, the appellants started
intermeddling with properties bequeathed to
Respondent 2, which were situated in Delhi
and, therefore, left with no option, he was
compelled to apply for letters of
administration. Therefore, even as per the
pleadings in the application, the cause of
action started from the date on which the
appellants started intermeddling with the
properties bequeathed to Respondent 2, after
passing away of the father of the parties in
the year 2000. Therefore, in the facts and
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circumstances of the case, both the learned
Single Judge and the Division Bench have
rightly refused to reject the application in
exercise of powers under Order 7 Rule 11
CPC. In the facts and circumstances of the
case and as observed hereinabove, it cannot
be said that the application for letters of
administration was clearly barred by the law
of limitation which was required to be rejected
in exercise of powers under Order 7 Rule
11(d) CPC. We are in complete agreement
with the view taken by the High Court.”
13. In Stark Contrast in the petition filed by the
plaintiff seeking grant of Letters of Administration,
nothing is stated regarding the delay and what
prompted the petitioner to seek Letters of
Administration in the year 2014, although the testator
died on 08.02.2005, leaving behind a Will dated
25.07.1997. The petitioner has not stated that he
was not aware of the Will left behind by the testator or
that he recently came to know about the Will or that
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the Will was not in the possession of the petitioner.
What is more essential to notice is that though the
petitioner has given the information regarding the
natural heirs left behind by the testator, nevertheless
they are not arrayed as party respondents to the
proceedings. No notice was issued to the other legal
heirs of the testator.
14. Applying the ratio laid down by the Apex Court
in the matter of a petition filed under Section 278 for
grant of Letters of Administration and Article 137 of
the Limitation Act, being applicable for such petition,
this Court is of the considered opinion that the
petition/plaint was required to be rejected under
Order VII Rule 11 of the CPC, as being barred by the
law of limitation.
15. Accordingly, the Civil Revision Petition is
allowed. The application filed by the defendant No.1
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in I.A.No.1 seeking rejection of the plaint is allowed.
As a consequence, the plaint in O.S.No.25752/2024
on the file of learned LXXIV Addl. City Civil and
Sessions Judge, Mayo Hall Unit, Bengaluru, stands
rejected.
16. In light of the plaint in O.S. No.25752/2024
being rejected in the abovementioned terms, the
petition in W.P.No.7348/2025 stands disposed of as
having become infructuous. The writ petition was filed
seeking directions to the Trial Court to dispose of the
case expeditiously.
Ordered accordingly.
In view of the above, pending I.As., if any, stand
disposed of.
Sd/-
(R. DEVDAS)
JUDGE
KLY/JT
CT: JL
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