Ram Dass Vs. Gulshan Kumar and ors. - Court Judgment

Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. if a party does not know about the making of the order either actually or constructively it may claim that the period of limitation would start running from the date it acquires knowledge of the making of an order but one cannot understand how a party, who has acquired knowledge of the making an order either directly or constructively can ignore the same and belatedly seek redress just because the authority making the order had made a default in formally communicating the order to him. allowing a party to do so would amount to placing a premium on the lack of diligence of a party, who is remiss in seeking a remedy that was available to it. therefore, knowledge whether actual or construction of the order passed by the state or regional transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - 6. as a result, the review application filed by ram dass petition is rendered infructuous and so the revision petition as well.g.c. garg, j.1. this revision petition is directed against the order dated september 19, 1990 passed by additional district judge, bhiwani whereby an application under section 114 of the code of civil procedure seeking review of the order dated february 6, 1990 was dismissed.2. few facts deserve to be highlighted before discussing the merits of the controversy raised in this revision. sandhu bhagat gandhi was the owner of the property. he left behind a will dated december 9, 1982. he had two wives, naraini devi and raj knmari. from naraini devi he had one son. ram dass the present petitioner and a daughter saroj kumari. from raj kumar and his brothers sons of raj kumari filed a petition for grant of probate under section 276 of the indian succession act, 1925 (for short 'the act'). alongwith the petition, a schedule of properties, 23 in number, was filed. other heirs of the testator were impleaded as respondents in said petition. the court of competent jurisdiction after considering the matter, granted probate with a copy of the will annexed, by order dated september 30 1986. on a later date, it was found that there were six items of properties which had not been included in the schedule filed along with the petition for grant of probate. consequently, satish kumar brother of gulshan kumar moved an application under section 376 of the act for inclusion of these properties in the schedule of properties filed with the petition for grant of probate, by extending the probate earlier granted. this application was allowed on february 6. 1990. ram dass, step-brother of gulshan kumar and satish kumar and others moved a review application under section 114 of the code seeking review of order dated february 6, 1990 on the ground that there was no provision for grant of supplementary probate which was ordered to be issued by the said order. the review application was dismissed being not tenable, by the learned additional district judge, bhiwani by order dated september 19, 1990. ram dass petitioner seeks? revision of the said order.3. after hearing learned counsel for the parties and going through the record, i find that the entire approach of the learned additional district judge is erroneous however, in spite of that, the petitioner is also not entitled to any relief in this petition. for seeking a probate of a will, an application for probate or for letters of administration, with a copy of the will annexed, is required to be made to a court of competent jurisdiction indicating therein the time of the testator's death, that the writing annexed is his last will and testament, that it was duly executed, the amount of assets which are likely to come to the petitioner's hands and when the application is for probate, that the petitioner is the executor named in the will. all these particulars, as noticed above, are required to be disclosed either in the probate petition itself or in the document annexed to the probate petition. it is thereafter that the court of competent jurisdiction considers the entire matter after notice to the respondent and general public, as to whether the petition deserves to be granted and consequently a probate or a letter of administration with a copy of the will annexed, is required to be issued. a reading of section 276 of the act goes to show that probate is granted of a will and not of a property or properties or in respect of properties, statement of which is annexed with the probate petition as required by the provisions contained in the section. this statement of properties annexed with the probate petition is for a different purpose, namely, for the purpose of court fee etc. from the statement of the properties annexed with the probate petition, it cannot be inferred that the probate has been granted in respect of the properties detailed therein. as noticed above, the probate is of a will and not of the properties detailed in the statement annexed with the probate petition. there is, thus, no question of granting an extended probate or supplementary probate of that will. the probate is one composite document granted by a court with a copy of the. will annexed.4. the petition moved for grant of supplementary letter of probate which was granted by order dated february 6, 1990 in exercise of powers under section 376 of the act was wholly misconceived. section 376 of the act falls in part x of the indian succession act, 1925 starting from section 370 and ending with section 390 and this part relates to grant of succession certificates. provisions of sections 370 to 390 only relate to grant of succession certificates and no provision of these sections relates to grant of probate. section 276 falls in chapter iv of part ix. chapter iv of part ix containing sections 264 to 302 relates to granting and revoking probates and letters of administration. this shows that the two sets of provisions one relating to grant of succession certificates and the other relating to grant of probate, are two independant provisions and one has nothing to do with the other. the court below while granting the extended letter of probate acted illegally by entertaining that petition to be one under section 376 of the act. in fact, no petition lies for grant of supplementary letter of probate or extended letter of probate. in my view, once a will is probated, it relates to all the properties that are covered by the will, whether included in the list of properties attached with the probate petition or not. any property not covered by the will which has been probated and belonging to the testator will go to the heirs of the deceased-testator according to the provisions contained in the hindu succession act or as per succession applicable to the parties.5. letter of probate once granted is a judgment in rem and consequently is binding on all, whether they are parties to the probate petition or not unless revoked by a court of competent jurisdiction in accordance with the procedure provided in the act. as a necessary corollary it follows that application for grant of supplementary letter of probate which was granted by order dated february 6, 1990 was wholly misconceived and the order passed thereon wholly illegal and unknown to law. the order dated february 6, 1990 is consequently set aside.6. as a result, the review application filed by ram dass petition is rendered infructuous and so the revision petition as well. consequently, the revision is dismissed. no costs.