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P L D 1975 Karachi 76

 

Before Tufail Ali A. Rehman, C J

 

ABDUL RAUF GHAZIANI‑Appellant

 

versus

 

ZAIBUNNISSA AND 2 OTHERS‑Respondents

 

Miscellaneous Appeal No. 33 of 1972, decided on 31st May 1974.

 

 

Durgapada v. Atul Chandra A I R 1937 Cal. 595 and Zimali v. Wasudeo A I R 19$9 Nag. 154 rel.

 

Manindra Chandra v. Mahaluxmi Bank A I R 1945 P C 105 ref.

 

Hasan Akbar, Ali Raza and A. K. Niazi for Appellants.

 

Nemo for Respondents.

 

Date of hearing : 24th May 1974.

 

JUDGMENT

 

These three appeals raise a common question of law which is whether an application for probate or administration or succession certificate made for the first time after the lapse of three years from the death of the deceased must, in the absence of a satisfactory explanation, be dismissed by reason of rule 347 of the Sind Civil Courts Rules.

 

2. None of these cases was a case of probate, Miscellaneous Appeals 33 and 34 of 1972 arising out of an application for succession certificates and letters of administration respectively in respect of a deceased Muslim while Miscellaneous Appeal 73 of 1972 arises out of an application for the grant of letters of administration in the case of a Christian. Admittedly in each of these cases the application was made well after the period of three years prescribed in rule 347 was over and, in one case, as late as 23 years after the death. In none of these cases did the learned District Judge consider the explanation satisfactory and he accordingly dismissed the applications. The common contention before me in all these cases has been that despite the language of rule 347, an application cannot be dismissed in these circum stances and reliance is placed strongly upon the fact that, as cannot be disputed, neither the Succession Act nor the Limitation Act prescribe any period of limitation. Such a period, if it can be described as a period of limi tation at all, is stated in the rule itself which reads :‑

 

“347. In any case where probate or administration or succession certificate is for the first time applied for after the lapse of three years from the death of the deceased, the reason for the delay shall be explained in the petition. Should the explanation be unsatisfactory, the Court may require such proof of the alleged cause of delay as it may deem fit.”

 

3. Mr. Ali Raza appearing for the appellant in one of these cases argued that even upon the terms of the rule it was not possible for the learned Judge to dismiss the application but he could only ask for further proof of the alleged cause of delay. Now the last sentence in this rule appears to me to be somewhat ambiguous: it is only if the explanation is found unsatisfactory that the Court is empowered to require anything further. It would, therefore, appear that this would mean that some further explanation or, perhaps, details of the explanation already submitted, might be required. On the other hand, however, the express language is “require such further proof of the alleged cause of delay as it may deem fit” which would seem to mean that it is not a further explanation that is contemplated but merely further proof of the facts which constitute the explanation already given.

 

4. When I put this to learned counsel he said that in either event all that the Court could do was to require something further and, if that something further when produced was still not found satisfactory, it would nevertheless have no power to dismiss the application. He, however, had to concede that if eventually after all such further proof or further ex planation as it might be held that the rule provides for, be given and found unsatisfactory there would really be, upon the language of the rule at least, no alternative but to dismissing the application. If this were all then subject to examining the question whether in an individual case the explana tion was satisfactory, it would seem to follow that a dismissal is not only contemplated but can be the only possible result.

 

5. Several considerations, however, militate against this view. In the first place since no limitation is prescribed by any statute, I am quite unable to see how a rule can prescribe any. Nor is the language of the rule so explicit that I am driven to conclude that it does so prescribe and, therefore, .4 in accord with the well settled principle that a rule ought to be construed if possible in such a manner as to make it intra vires rather than ultra vires, I would hold that rule 347 prescribes no period of limitation.

 

6. It is also to be noted that, in the absence of a will‑and none of the cases before me now involve a will‑the property of a deceased person devolves upon his heirs upon the moment of his death and succession certificates and letters of administration are granted for the purpose of facilitating the persons entitled to obtain the property. They do not by themselves confer title and it would be unfortunate indeed if a procedural rule made by an authority not competent to prescribe a period of limitation, were to be interpreted. so as to defeat a title already vested.

 

7. That there is no limitation in these matters is settled by a long chain of authority and it will suffice to refer to a few cases on the point. In the case of Durgapada v. Atul Chandra (A I R 1937 Cal. 595) it was observed as to delay :‑

 

“As to delay, it may be pointed out that application for probate or letters of administration with the will annexed (as well as application for revocation of probate or of letter of administration) are not governed by the law of limitation. This question is now covered by authority, and we might refer amongst others to the decision in 6 Cal. 707, which was a case of an application for probate and to the decision in 19 Cal. 48, which was a case of revocation of probate. There are decisions also in other High Court to the same effect, among which may be mentioned the case in 7 Bom. 213, and 17 Mad. 379. As Muttusami Ayyar, J. put it in the last mentioned case, the reason why applications for probate are exempted from the operation of the Limitation Act probably is that such an application is in the nature of an application for permission to perform a duty created by the will or for recognition as a testamentary trustee, and the right to apply continues so long as the object of the trust exists or any part of the trust, if really created, remains to be executed. Long delay in making an application for probate, or for Letters of Administration with the will annexed is no doubt a circumstance which may be properly taken into account in determining the question of the genuine ness of the will, but that is about the only purpose for which it is relevant in such a proceeding. Cases are not unknown in the reported decisions where probate or Letters of Administration have been granted many years after the death of the testator. One such is that of Ishan Chandra Roy already referred to. Another is the case in 33 C L J 382. It is not necessary to refer to other instances.”

 

8. Again in Zimali v. Wasudeo (A I R 1949 Nag. 154) after referring to a long list o! cases the learned Judges observed “we think it must now be regarded as settled law that there is no period of limitation for such applications”.

 

9. In the Privy Council case of Manindra Chandra v. Mahaluxmi Bank (A I R 1945 P C 105) their Lordships observed :‑

 

“With regard to the delay in the application for probate, this naturally gives rise to some suspicion, especially when taken along with the adverse action of the widow and Saroda, but if the learned trial Judge’s finding that the execution and attestation of the will was proved by the evidence he accepted, he is certainly right in saying that the suspicion no longer operates. The finding of the learned Judge as to execution and attestation of the will is a pure finding of fact, but the High Court have reversed it.”

 

Clearly the Privy Council regarded the delay as a matter which might be taken into account for the purpose of deciding whether the will itself was genuine but not as making the application non‑maintainable. Indeed their Lordships indicated that a party might well wait until he felt the need of a probate or letters of administration for they go on to observe “on the question of delay, their Lordships agree with the trial Judge that the necessity for probate did not arise till after the death of the widow who had made no adoption.”

 

10. It is true that there are cases where although there is no period of limitation prescribed the Court may refuse an application on the ground of delay. In such a case the application is really refused on the ground of laches as for instance a petition under Article 199 of the Constitution. But these are cases where the grant of the petition is a discretionary matter for the Court and in such cases, I can see no objection to the Court prescribing a period by its own rules and declining an application if it is filed after such period unless the delay is satisfactorily explained. Such for example is the case in the exercise of Criminal Jurisdiction. But then such a period is prescribed not as a period of limitation strictly but merely as one beyond which ]aches will be presumed. Such is certainly not the case when we are dealing with applications for probate or letters of administration or succes sion certificates.

 

11. I have, therefore, come to the conclusion that an application for Letters of administration or succession certificate may be entertained, rule 347 of the Sind Civil Courts Rules notwithstanding, even after the period of three years mentioned is that rule.

 

12. As to the merits of these cases in none of them was the petition such that the delay could really occasion any suspicion at all. The learned Judge’s reliance upon rule 347 alone, therefore, was not justified.

 

13. I accordingly allow these appeals and remand the cases for hearing on merits to the District Judge.

 

S. A. H. Appeals allowed.

 

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