Nishitendu Chaudhury, J@mdashJudgment dated 04.09.2004 passed by the learned District Judge, Kokrajhar in Misc. P. Case No. 74 of 1998 has been called in question in this appeal. By that judgment the learned trial court dismissed the application filed under Section 276 of the Indian Succession Act, 1925. The learned Court held that Will was never executed by the testators. One Narayan Chandra Mandal as petitioner approached the learned trial court by filing an application on 28.10.1998 claiming that his father Pagal Chandra Mondal @ Pagal Chand Mondal died at Kokrajhar on 25.08.1993 and it is stated that prior to his death on 09.08.1990 Pagal Chandra Mondal @ Pagol Chand Mondal had executed a Will on 03.08.1990 in presence of the attesting witnesses. By that Will the property described in Schedule-A land to the petition was bequeathed to the younger son of Narayan Chandra Mandal, value of which was to the tune of Rs. 30,000/-. He further stated that Pagal Chandra Mandal left behind two sons including himself and daughter Sarola Mondal. But the application does not contain any explanation as to why the same was filed on 28.10.1998 although the cause of action of the petition had arisen immediately after death of Pagal Chandra Mondal on 25.08.1993. The learned trial court entertained the application and issued notice to the other side apart from general citations. Sudhir Mondal elder son of the testator appeared and submitted objection challenging the correctness or otherwise of the probate petition. It was claimed that no such Will was ever executed by the testator during his lifetime and that it was barred by law. During pendency of the proceeding Sudhir Mondal died and thereafter, his legal heirs were brought on record. In Paragraph-4 of this objection it was specifically stated that probate petition was filed after long delay.
2. On the basis of said rival contentions of the parties, the learned trial court framed as many as three issued and the same are quoted below:
"1) Whether the deceased Pagal Ch. Mondal had executed the "Will" filed in this suit?
2) Whether the testator of the "Will" had capacity to execute the Will?
3) Whether the petitioner is entitled to get probate of the Will as prayed for?"
3. The proceeding thus got automatically converted in the form of a suit by operation of Section 295 of the Indian Succession Act, 1925. The petitioner Narayan Chandra Mandal examined three witnesses including himself. The attesting witness Moheswar Saha was examined as P.W.3 while scribe Surendra Mohan Roy was examined as P.W.2. All the witnesses were cross-examined and discharged. Will was exhibited as Exhibit-1. The learned trial court after considering all the materials available on record decided all the issues in favour of the respondent/objector and against the petitioner. It held that testator Pagal Chandra never executed such Will and he had no capacity to execute the Will either. Having so found, it was held that petitioner is not entitled to probate of the Will and with these findings the probate proceeding was dismissed with cost of Rs. 20,000/-, by judgment and order dated 04.09.2004. It is this judgment which has been brought under challenge in the present appeal under Section 299 of the Indian Succession Act, 1925.
4. I have heard Mr. R.K. Jain, learned counsel for the appellant. None appears for the respondents although names of as many as four learned counsel have been projected in the cause-list.
5. Before the learned counsel for the appellant proceeded to argue on the point of suspicious circumstances attending the alleged Will, this court wanted to see if the Will was presented for probate within the statutory period of limitation.
6. In the case of
7. I have perused the probate petition in this case but it is conspicuously silent in this regard. The application was filed on 28.10.1998, whereas the testator had died on 25.08.1993. Thus, obviously probate application has been presented nearly 5 (five) years after the death of the testator and so admittedly it was filed 5 years after the accrual of the cause of action and that too without any explanation as to why such a delay was caused and as to whether it amounted to sufficient cause within the meaning of Section 5 of the Limitation Act, 1963. Section 3 of the Limitation Act imposes a responsibility on a Court to have a prima facie satisfaction before entertaining any suit, appeal or an application even if no objection has been raised by the other side in regard to limitation as a point of defence. It is a duty of the Court to satisfy itself first to see that the proceeding has not been initiated beyond the statutory period of limitation. In this case, the learned trial court had illegally and erroneously exercised jurisdiction in not taking note of this relevant aspect of the matter. The probate proceeding itself being barred by limitation, there was no point in going into the validity or correctness of the Will and so even the subsequent direction to pay cost of Rs. 20,000/- has also become uncalled for. The learned trial court could have dismissed the proceeding as a time barred one. In view of the aforesaid judgment passed by this Court as well the judgments of the Hon''ble Supreme Court in the case of Kerala State Electricity Board (Supra) the impugned judgment itself is without jurisdiction. Accordingly, both the appeal and proceeding is dismissed as not maintainable. Consequently, the direction to pay Rs. 20,000/- to the opposite parties is also set aside. No order as to costs.
