Vishwanatha Shetty, J.

1. This appeal is directed against the judgment and Order dated 12th July, 2000 made in O.S. No. 32 of 1990 by the Court of the VI Additional City Civil Judge, Bangalore (hereinafter referred to as 'the City Civil Judge') granting probate of the Will dated 20th April, 1970 of late C. G. Shastry in favour of the 1st respondent in so far as it relates to property set out in 'A' Schedule given to the plaint. The appeal was initially filed by one B. Manjunath Prabhu and during the pendency of the appeal since the original appellant having expired, his legal representatives were brought on record as supplemental appellants No. 1(a) to 1(c), by means of Order dated 1st December, 2003.

2. Facts of the case may be briefly stated as hereunder :

The 1st respondent C. G. Srinivas filed a petition for probate in P and SC No. 61 of 1983 on 21st January, 1983 on the file of the City Civil Judge, Bangalore under Section 276 of the Indian Succession Act, 1925 (hereinafter referred to as ' the') seeking probate of the Will dated 20th April, 1970 of late C. G. Sastry. In the said petition, the wife and the children of his elder brother-C.G. Rama Rao were arrayed as respondents 1(a) to 1(f) (i.e., respondents No. 2 to 7 in this appeal); one other brother-C.G. Narasimhamurthy was arrayed as respondent No. 2 (i.e., respondent No. 8 in this appeal); and sister Smt. Padma Seshadri and another Smt. Venkatalakshamma were arrayed as respondent Nos.3 and 4 respectively (i.e., respondents Nos. 9 and 10 in this appeal). The original appellant late B. Manjunatha Prabhu and the respondent No. 11 in this appeal were arrayed as respondent Nos. 5 and 6. The said petition pertained inter alia to half share in the Firm of M/s. C. G. Sastry comprising of Hotel Rajmahal, including the building, furniture and all other equipments, No. 34 (old No. 33-34) Seshadri Road, Bangalore, building bearing No. 284-D, 8th Block, Jayanagar, Bangalore, cash due to late C. G. Sastry in the Firm of 'M/s. C. G. Sastry"; cash in Fixed Deposits in Allahabad Bank and cash in Current Account and other Bank or Banks in the name of deceased C. G. Sastry and utensils and movables found in the residence of late C. G. Sastry bearing No. 60, S. B. Road, V. V. Puram, Bangalore. Pursuant to the petition filed by the 1st respondent for grant of probate, the City Civil Judge directed issue of Notice to the respondents. On being served with the Notice issued by the Court, respondents 1(a) to 1(f) to the petition, filed their objections on 18th October, 1984 opposing the grant of probate and taking serious objections with regard to the allegations made against G. C. Rama Rao. The respondents 2 to 4 in the petition did not contest the proceedings by filing statement of objections. However, respondents 5 and 6 filed their objections opposing the grant of probate. In the course of the proceedings, the 1st respondent also sought to amend the Probate petition by adding the legal representatives of V. R. Panduranga as respondents No. 7(a) to 7(g) (i.e., respondents 12 to 18 in this appeal) since the probate included the property bearing No. 284-D, 8th Block, Jayanagar, Bangalore, which was set out in 'B' Schedule given to the petition. On being served with the Notice, while respondents No. 7(a), 7(c) and 7(d) contested the proceedings, the respondents 7(b), 7(e), 7(f) and 7(g) remained ex parte. Since some of the respondents referred to above had filed objections and contested the probate proceedings the same was treated as a suit as provided under Section 295 of the. The contentions raised in the probate petition by the petitioner and by the respondents referred to above in their objections, were reiterated by them in the plaint and written statement filed by them.

3. The parties in this appeal, in the course of the judgment, will be referred to with reference to their status in the suit. It is the case of the plaintiff that he is the youngest son of late C. G. Shastry; the said C. G. Shastry died on 21st January, 1971; at the time of his death he had left behind him his widow-Smt. Venkatalaksamma- the 4th defendant, his three sons, viz., late C. G. Rama Rao, i.e., the husband of defendant 1(a) and father of defendants 1 (b) to 1(f); his second son C. G. Narasimhamurthy-the 2nd defendant; the plaintiff and his sister Padma Seshadri-the 3rd defendant as his legal heirs; the deceased C. G. Sastry had executed his last Will and Testament in his own handwriting on 20th April, 1970 which was registered in the Office of the Sub-Registrar, Bangalore (North) Taluk; on the date of the Execution of the Will, the plaintiff was a minor and he had attained majority only on 25th December 1970, i.e., just 21 days before the death of C. G. Sastry; the said C. G. Sastry, by his hard work and enterprises built up a very big business in Bangalore which included business in Hotel Industry and Pharmaceuticals; and with a view to bring up his children in the same business, he started a partnership concern in the name and style of "M/s. C. G. Sastry" with his two major sons C. G. Rama Rao and C. G. Narasimhamurthy under a deed of partnership dated 1st December, 1953 and in the said firm while C. G. Sastry had four annas share, his two sons were given six annas share each respectively, of the profits of the firm and the said partnership firm was altered by means of another deed dated 15th April, 1957 and the partnership business included the City Medical and General Agency at Chickpet, Bangalore, Hotel Tajmahal at Gandhinagar, Hotel Rajmahal, Seshadri Road, Bangalore and Hotel Ambassador at High Grounds; though late C. G. Sastry had taken only four annas share in the partnership and two of his major sons were given six annas share, the entire capital was subscribed by him out of his self-acquisition; C. G. Rama Rao, released himself from the partnership business by a deed of mutual transfer dated 30th June, 1968 in consideration of his getting the absolute right, title and interest in the business and building of Hotel Ambassador at High Grounds; in pursuance of such mutual transfer, late C. G. Sastry became entitled to six annas share of his eldest son, in addition to his four annas share in the partnership business of M/s. C. G. Sastry; and thereafter C. G. Sastry continued the partnership business along with his second son C. G. Narasimhamurthy with ten annas share and six annas share respectively, on 1st July, 1969 the said C. G. Sastry and his second son C. G. Narasimhamurthy dissolved the partnership; on dissolution of the partnership, C. G. Narasimhamurthy took over the City Medical and General Agency and Sastry's Hotel at Chikpet, Bangalore and C. G. Sastry became the absolute owner of all the business and immovable properties of the dissolved partnership concern M/s. C. G. Sastry; the said C. G. Sastry again constituted another partnership business consisting of himself, his daughter Smt. Padma and the plaintiff on 1st January, 1970 and as per the terms of the said partnership, while C. G. Sastry had eight annas share his daughter Smt. Padma and the plaintiff had four annas share each; the plaintiff being minor on that date, he was only admitted for the benefit of the partnership; C. G. Sastry by means of his Will dated 20th April, 1970 had bequeathed all his properties, both movable and immovable, to the plaintiff and constituted his mother as executrix of the Will; the properties bequeathed under the said Will were set out in Schedules-A, B, C, D and E given to the plaint; it is also asserted in the plaint that prior to the death of C. G. Sastry on 21st January, 1971, he was ailing for a period of three months prior to 14th November, 1970 and after his demise his elder son C.G. Rama Rao shifted his entire family to the house of C. G. Sastry at V. V. Puram and started living with his mother, his brothers and sister; the last rites of the deceased took place at his residence; and on the day of Vaikunta Samaradhana, i.e., on the 13th day after the demise of C. G. Sastry, C. G. Rama Rao called the plaintiff and his brother, sister and mother for a meeting of the family council on the first floor of the premises and in the said meeting one Sri Nagesh Rao, who was stated to be well-wisher of the family and who claimed to be a close associate of late C. G. Sastry spoke for ten minutes consoling the members of the family and took out a sealed cover and hadned over the same to C. G. Rama Rao stating that late C. G. Sastry had entrusted the said cover to him to be opened only after his demise and on such cover being handed over to C. G. Rama Rao, C. G. Rama Rao in the presence of the members of the family opened the cover and produced the short paper measuring roughly 2 inch in length and 6 to 8 inch in breadth and read out the contents of the same loudly; the contents of the said paper showed that C. G. Sastry had executed the Will dated 14th November, 1970 bequeathing all his assets, both movable and immovable, to be shared equally by his wife, his children; the plaintiff who had just attained the age of majority was made to believe that the said scrap of paper was a Will; the said document which was styled as a Will was engineered in connivance with Nagesh Rao, and the plaintiff who was the youngest son and who was not very much wordly wise did not suspect that his eldest brother would stoop to the level of fabricating a document which was styled as a last Will and therefore the plaintiff was persuaded to accept the contents of the said Will; the Will purported to have been executed on 14th November 1970, was a fabricated and got up document, on the basis of which the brothers of the plaintiff, C. G. Rama Rao and C. G. Narasimhamurthy, gained unfair advantage over the plaintiff by laying a claim for a equal share in all the assets, both immovable and movable, of late C. G. Sastry.

4. It is further alleged that the said C. G. Rama Rao being the eldest member of the family had assumed the role of patriarch and gained control over the entire management of the affairs of the business of late C. G. Sastry; on the basis of the got up Will dated 14th November, 1970 he got release deed dated 14th April, 1971 executed by Sri C. G. Narasimha Murthy in consideration of payment of Rs. 1.50 lakhs (Rupees one lakh fifty thousand only); thereafter, he created a deed of partnership dated 15th April, 1971 with his mother-Smt. Venkatalakshamma, his sister Smt. Padma and the plaintiff, subsequently he persuaded the plaintiff, his mother and sister to subscribe to a document styled as dissolution of partnership manipulating that certain payment was made to them; the said documents were brought about by fraudulent misrepresentation by C. G. Rama Rao made to the plaintiff, and the same is not binding on the plaintiff;

C. G. Rama Rao expired in the month of August, 1977 and after his death, the 5th and 6th defendants in the suit made certain financial adjustments and the 5th defendant got Katha transferred in the Corporation record in respect of 'A' Schedule property in his name, which is illegal, and all these years the plaintiff was under the impression that there was no fraud or misrepresentation; but on or about the end of July, 1982, the plaintiff was able to find the original registered Wil dated 20th April, 1970 in old locker of late C. G. Sastry kept in the upstairs of the house, while he was searching for some documents and after going through the contents of the Will, he received a shock of his life and under those circumstances he has filed the petition for probate in respect of the said Will with necessary and consequential orders.

5. Defendants 5 and 6 filed written statement disputing the claim made by the plaintiff and inter alia contending that the suit was filed by the plaintiff with ulterior motive for making unlawful gains for himself by blackmailing the defendants; the petition filed and the proceedings initiated for the first time on 20th January, 1983 for issue of probate was barred by limitation; the 6th defendant having become the full and absolute owner of 'A' Schedule property and the 5th defendant having been in possession of the said property as lessee, and subsequently, they on 12th July, 1989 having entered into deed of partnership along with three sons of the 5th defendant under the name and style "M/s. Pragati Investments", the immovable property bearing Nos. 33 and 34, Seshadri Road, Bangalore was made over to the said Firm; and subsequently, the 6th defendant has retired from the partnership as per the deed of retirement dated 5th January, 1990, etc., the plaintiff is not entitled for any relief in the suit; the Will dated 20th April, 1970 relied upon the plaintiff; not being the last Will and the Will dated 14th November, 1970 being the last Will and testament of late C. G. Sastry, the plaintiff was not entitled for issue of probate; the Will dated 14th November, 1970 is a genuine and valid Will and the same is not surrounded by any suspicious circumstances, the plaintiff having had the full knowledge of the Will dated 20th April, 1970 and thereafter having accepted the Will dated 14th November, 1970 as the last Will and testament of late C. G. Sastry and having acted upon the said Will and having been a party to several transactions; the plaintiff having accepted the said Will and acted upon the said Will and held out to all the concerned including the contesting defendants that the said Will was the genuine Will; and as a consequence of the said acts, the defendants having altered their position, the plaintiff was estopped from contending that the said Will was not a genuine Will. It is further asserted that late C. G. Sastry had left a heavy burden of debts and Income-tax arrears of over Rs. 7.00 lakhs and to clear those dues C. G. Rama Rao had no option but to dispose of the property; and therefore, on 12th May, 1972 the said C. G. Rama Rao had entered into an agreement with Syndicate Bank for the purpose of securing certain loans by depositing the title deeds in respect of Hotel Rajmahal and on 6th May, 1974 the said C. G. Rama Rao and one C. R. Satish, i.e. the defendant No. 1(b), entered into a deed of composition with the successor of Syndicate Bank Ltd. ICDS Ltd. i.e., the successor of the 6th defendant, under which the possession of the Hotel Rajmahal was handedover to the possession of 6th defendant on certain conditions which are set out therein; on 1st January, 1976 the said C. G. Rama Rao, C. R. Satish, B. Manjunatha Prabhu, and one B. Ravishankar Prabhu, i.e, the appellant No. 1(a) in this appeal, entered into another partnership deed and the assets mentioned in the schedule to the partnership deed including the property claimed by the plaintiff, became the property of the said partnership, on 15th January, 1976, deed of dissolution was entered by C. G. Rama Rao, C. R. Satish and B. Manjunatha Prabhu and B. Ravishankar Prabhu under which the properties mentioned in Schedule 'A' and 'B' to the said deed were allotted to the share of Sri B. Manjunath Prabhu and B. Ravishankar Prabhu, subject to the condition that the liabilities payable to the 6th defendant arising out of an equitable mortgage executed by means of deed dated 16th May, 1972 shall be discharged by them along with other conditions specified in the said deed; on 16th January, 1976 B. Manjunatha Prabhu entered into another partnership deed with one Pushpa Prabhu, Sreedevi Prabhu and Srimathi R. Prabhu and the properties mentioned in Schedule 'A' including Hotel Rajmahal became the assets of the said partnership; and the said partnership was subsequently dissolved on 18th November, 1977; the entire assets and liabilitie of the partnership were given to the share of 5th defendant-B. Manjunatha Prabhu and B. Ravishankar Prabhu; subsequently the said B. Manjunatha Prabhu and B. Ravishankar Prabhu entered into a deed of partnership on 19th November, 1977 with the 6th defendant under which the properties belonging to B. Manjunatha Prabhu and B. Ravishankar Prabhu, including Hotel Rajmahal, was brought to the partnership and the Firm became the owner of the entire property mentioned in Schedule 'A' and 'B' of the Partnership Deed; the said partnership was again dissolved on 28th February, 1978; the property mentioned in the Schedule given to the said Deed which included Hotel Rajmahal, were allotted to the share of the 6th defendant; and the 6th defendant became the full and absolute owner of the 'A' Schedule property and enjoying the same as such ever since then; subsequently, the 6th defendant had leased the said Hotel Rajmahal in favour of 5th defendant-B. Manjunatha Prabhu and the said B. Manjunatha Prabhu has been in possession of the property as the lessee thereof. Subsequently, the 5th defendant-Manjunatha Prabhua was improved the existing building and put up a huge new block of rooms spending over Rs. 1.50 crore (Rupees one crore fifty lakh only) and all these things having taken place with full knowledge of the plaintiff, the plaintiff is estopped from challenging the validity of the Will dated 14th November, 1970; the fact that the plaintiff has taken the certified copy of the Will dated 20th April, 1970 on 12th August, 1971 itself, clearly shows that the plaintiff had the knowledge of the said Will and there is no truth in his assertion that he came to know of the Will only in the year 1982; the plaintiff, having kept quiet all these years, cannot now be permitted to challenge the validity of the Will dated 14th November, 1970; since the defendants have come into possession of the property bona fide without notice of earlier transactions and on basis of the approval of the plaintiff himself, their right, title and interest in the property in question cannot be taken away by falsely pleading that the plaintiff had no knowledge of the Will dated 20th April, 1970 till the year 1982 and on that basis seek for an order for issue of Probate of the Will dated 20th April, 1970.

6. On the basis of the pleadings of the parties, the trial Court framed 13 issues, which are set out as hereunder :

1. Does the plaintiff prove the Will dated 20-4-1970 is the last Will do the defendants prove it is fabricated one

2. do the defendants prove the last Will dated 14-11-1970 Does the plaintiff prove it is fabricated one

3. Does the plaintiff prove due execution of the Will by Mr. C. G. Sastry

4. Whether C. G. Sashtry had no absolute title, interest over 'B' Schedule property 284-D Does it belong to the defendant

5. Do the defendants 5, 6 prove their title or any right contended by them in the written statement, paras 18 to 20

6. What improvement defendant Nos. 5 and 6 have effected on the property

7. Whether the suit proceedings is barred by the law of limitation

8. Whether the valuation made and Court-fee paid are insufficient

9. To what properties the parties are entitled

10. Whether possession of defendant No. 7 made perfect by adverse possession of 'B' Schedule property

11. Does the plaintiff prove his right for issue of probate for the assets of the deceased C. G. Sastry

12. To what reliefs the parties are entitled

13. Whether defendant Nos. 5 and 6 prove that the plaintiff has accepted the genuineness and validity of the Will dated 14-11-70 and therefore, the plaintiff is estopped from challenging the genuineness and validity of the Will dated 14-11-70 executed by late C. G. Sastry and seeking an order of probate of the Will dated 20th April, 1970 executed by deceased C. G. Sastry

7. In the course of the proceedings before the trial Court, the plaintiff examined himself as P.W. 1 and examined three other witnesses as P.W. 2 to P.W. 4 and got marked 30 documents as Exhibits P1 to P30. The contesting defendants examined the son of the 5th defendant one B. Ravishankar Prabhu as D.W. 1 and four other witnesses as D.W. 2 to D.W. 5. As many as 40 documents were marked in support of their case as Exhibits D1 to D40. Answering issues No. 1 to 3, the City Civil Judge took the view that the plaintiff has proved that the Will Exhibit P16 dated 20th April, 1970 is valid, genuine and the last Will of late C. G. Sastry and the defendants have failed to prove the Will Exhibit D1 dated 14th November, 1970 as the last Will of late C. G. Sastry. While answering issues No. 4, 5 and 7, the City Civil Judge has taken the view that the Suit was not barred by limitation. On issue No. 6, the City Civil Judge recorded a finding that the defendants have proved that they have effected improvements on the suit schedule property. So far as issue No. 8 is concerned, the City Civil Judge took the view that it does not arise for consideration. While answering issue No. 9, the City Civil Judge took the view that the plaintiff is entitled to all the suit schedule properties. So far as issue No. 10 is concerned, the City Civil Judge recorded a finding that the defendant No. 7 has not perfected his title by adverse possession. So far as issue No. 11 is concerned, the City Civil Judge took the view that the plaintiff was entitled for issue of probate for the assets of the deceased C. G. Sastry. On Issue No. 13, the City Civil Judge held against the plaintiff.

8. In this Appeal Sri Uday Holla, learned Senior Counsel appearing along with Sri Radhesh Prabhu, learned counsel, challenging the correctness of the impugned judgment and decree, made five submissions. Firstly, he submitted that the finding recorded by the City Civil Judge that the contesting defendants have failed to prove that the Will Exhibit D1 as the last Will of the deceased C. G. Sastry, is totally erroneous in law. He pointed out that the reasons assigned by the City Civil Judge to come to his conclusion is unsustainable in law. Secondly, he submitted that the plaintiff having accepted the Will Exhibit D1 and on that basis having entered into Deed of Partnership Exhibit D11 dated 15th April, 1971 and Deed of Dissolution of Partnership Exhibit D12 dated 11th May, 1972 and held out to the entire world, including the contesting defendants, that he has no right whatsoever in the suit schedule properties, is estopped from contending that the Will Exhibit D1 is not a genuine Will. Elaborating this submission, the learned counsel pointed out that since the materials on record clearly show that the plaintiff had the knowledge of the Will Exhibit P16 and thereafter he having kept quiet till the year 1983 and made the contesting defendants to develop the suit schedule properties by investing huge money, he cannot now be allowed to go back on his promise to the detriment of the contesting defendants. He also pointed out that on account of the inherent contradictions in the pleadings and the evidence on record with regard to the knowledge of the Will Exhibit P16 pleaded by the plaintiff and the source from where he has come into the possession of the said Will, his claim that he came to know about the said Will only in the month of July, 1982, cannot be believed. Thirdly, he submitted that the City Civil Judge to have dismissed the Suit as one barred by limitation. Fourthly, he submitted that in the probate proceedings it was not permissible for the City Civil Judge to go into the title of the parties to the suit schedule properties. Finally, he submitted that in view of Section 222 of Indian Succession Act, and since admittedly Smt. Venkatalakshmma, who was appointed as Executrix of the Will was alive on the date of the filing of the Probate Petition, the City Civil Judge ought to have dismissed the Suit as one not maintainable in law. The learned counsel also pointed out that the application filed on behalf of the plaintiff in this appeal for grant of Letters of Administration instead of probate, cannot be allowed on the ground of inordinate delay and also on the ground that the procedure required to issue Letters of Administration was not complied with in the course of proceedings before the trial Court. In support of the above submissions the learned counsel referred to us the decisions of the Supreme Court and various other High Courts the case of A. Narayanappa v. B. Krishtappa, reported in AIR 1966 SC 1300 [LQ/SC/1966/28] ; in the case of Jayaram Mudaliar v. Ayyaswami, reported in AIR 1973 SC 569 [LQ/SC/1972/221] ; in the case of Ishwardeo Narain Singh v. Kamta Devi, reported in AIR 1954 SC 280 [LQ/SC/1953/20] ; in the case of Chiranjilal Shrilal Goenka v. Jasjit Singh, reported in 1993 (2) SCC 507 [LQ/SC/1993/243] : (1993 AIR SCW 1439); in the case of B. L. Sreedhar v. K. M. Munireddy, reported in AIR 2003 SC 578 [LQ/SC/2002/1294 ;] ">AIR 2003 SC 578 [LQ/SC/2002/1294 ;] [LQ/SC/2002/1294 ;] : (2003 AIR - Kant HCR 257); in the case of S. Gopal Reddy v. State of Andhra Pradesh, reported in (1996) 4 SCC 596 [LQ/SC/1996/1066] : (AIR 1996 SC 2184 [LQ/SC/1996/1066] ); and State of H. P. v. Jailal, reported in (1999) 7 SCC 280 [LQ/SC/1999/853] : (AIR 1999 SC 3318 [LQ/SC/1999/853] ); in the case of Lallubhai Chhotabhai v. Vithalbhai, reported in AIR 1982 Guj 222 [LQ/GujHC/1981/254] ; in the case of Jadeja Pravinsinhji v. Mangalsinhji Shivsinhji, reported in AIR 1963 Guj 32 [LQ/GujHC/1961/126] ; decision of this Court in the case of Kamalamma v. Somasekharappa, reported in AIR 1963 Mys 136; in the case of Gajanan Sambarao Gunjikar v. Vishwanath Manthadev Deshpande, reported in 1989 (2) Kant LJ 434; decision of the Andhra Pradesh High Court in the case of A. Narayanappa v. B. Krishtappa, reported in AIR 1959 AP 380 [LQ/TelHC/1958/188] ; decision of Punjab High Court in the case of Behari Lal v. Karam Chand, reported in AIR 1968 Pun 108; in the case of Dr. Mrs. Joginder Kaur Malik v. Malik Anup Singh, reported in AIR 1966 Pun 385.

9. However, Sri K. Parasaran, learned Senior Counsel appearing along with Sri L. S. Venkatakrishna, learned counsel while strongly supporting the finding recorded by the learned City Civil Judge that the Will Exhibit D1 is not a genuine Will executed by late C. G. Sastry but the Will Exhibit P16 executed by late C. G. Sastry is his last Will and testament, refuted every one of the contentions urged by the learned counsel for the appellants. He pointed out that the Will Exhibit D1 placed before the Court is not the original Will. In support of this contention, he referred to us the evidence of one Sri C. Aswathappa, Assistant Director, Forensic Science Laboratory, Bangalore, who was examined as P.W. 4, wherein he has stated that according to his opinion Exhibit D1 is a photostat copy. The learned counsel pointed out that the Will Exhibit D1 is surrounded by suspicious circumstances. According to him, since the Will Exhibit P16 was executed by late C. G. Sastry in his own handwriting (holograph Will), the Court should infer that late C. G. Sastry would have executed the Will Exhibit D1 also in his own handwriting. Further, even if it is assumed that on the date of the execution of Will Exhibit D1, C. G. Sastry was not in a position to write any document in his own handwriting, the absence of reference to the Will Exhibit P16 in Exhibit D1 and it is written in a small piece of paper measuring roughly 2 inch in length and 6 to 8 inch in breadth; the place of putting the signature by the witnesses and overwriting; the lack of particulars regarding the assets and the reason as to why he was revoking all other earlier Wills, would clearly indicate that the Will Exhibit D1 is not a genuine Will and a got up one. He pointed out that when all these aspects were considered by the City Civil Judge, there is absolutely no justification to reverse the finding recorded by the learned City Civil Judge on this question. The learned counsel further pointed out that the evidence on record clearly shows that late C. G. Sastry had given substantial properites to his first son C. G. Rama Rao and to his second son C. G. Narasimha Murthy and his wife Smt. Venkata-lakshamma. In this connection he referred to us Exhibit P24 dated 2nd January, 1942 wherein late C. G. Sastry had settled substantial properties in favour of his first son Rama Rao, Exhibit D8 dated 31st December, 1969 wherein C. G. Sastry had settled property relating to City Medical and General Agency and Sastry's Hotel with all assets goodwill, leasehold rights of property bearing No. 89, Chickpet, Bangalore in favour of his second son C. G. Narasimha Murthy, in Exhibit P16 Sri C. G. Sastry has stated that the Bungalow bearing No. 310, Viswesarapuram, Bangalore and another building No. 448 and 449, Chikpet, Bangalore and half share in Hotel Tajmahal, Gandhinagar, Bangalore were given to his wife Smt. Venkatalakshmma. Therefore, according to the learned counsel, by the year 1970, the only persons in the family who was not provided for with any property by late C. G. Sastry were, his unmarried daughter Smt. Padma and his third son-plaintiff and therefore, he had constituted a partnership business on 1st January, 1970 in the name and style of 'M/s. C. G. Sastry' with his daughter Smt. Padma and the plaintiff, the partnership business included Hotel Rajmahal and its business, in which C. G. Sastry had retained for himself 50 per cent share and given 25 per cent share in the said business to his unmarried daughter Smt. Padma and 25 per cent share to his minor son-plaintiff. The learned counsel further pointed out that the evidence on record also show that in addition to the said 25 per cent share given to his daughter Smt. Padma in the partnership business of M/s. C. G. Sastry, she was also given 50 per cent share in the business of Hotel Tajmahal, while another 50 per cent share was given to his wife Smt. Venkatalakshmma. It is his further submission that since the Registered Will Exhibit P16 was not seriously disputed either before the City Civil Judge or in the course of argument in this appeal, it must be held that the plaintiff has established the execution of the said Will as genuine and valid. He also strongly contended that the size of the Will Exhibit D1 exactly fits with the blank space available in the local Vakalath Form in a place where there is no printed material, and therefore, it is clear that late C. G. Rama Rao has taken advantage of the signature in a blank Vakalath Form and got the Will Exhibit D1 prepared to suit his convenience. So far as the contention of the learned counsel for the appellants that the plaintiff was not entitled to seek for issue of probate, since late C. G. Sastry has appointed his wife Smt. Venkatalakshamma as the Executrix of the Will Exhibit P16 and she having not made any application for issue of probate, the learned counsel pointed out that in the light of the application filed by the 1st respondent seeking amendment of prayer in the plaint praying for grant of Letters of Administration instead of probate, having regard to the facts and circumstances of the case, the said application requires to be allowed and the plaintiff would be entitled for grant of Letters of Administration. He further pointed out that the Indian Succession Act being a self-contained code, the provisions contained under Article 137 of the Limitation Act has no application and therefore the conclusion reached by the City Civil Judge that the application filed by the plaintiff seeking issue of probate is not barred by limitation, cannot be found fault with. He also pointed out that if the plaintiff had the knowledge of the Will Exhibit P16 at any time prior to the year 1982, it is impossible to believe that the plaintiff, who is a beneficiary under the Will, would have kept quite for such a long time without enforcing his legal rights and the inaction attributed to the plaintiff would be totally against natural human conduct and probabilities, and therefore, the version of the plaintiff that he came to know about the existence of the Will Exhibit P16 only in July, 1982 when he was searching for some papers in a locker, must be held to be true. With regard to the contention advanced on behalf of the appellants that the plaintiff is estopped from pleading that the Will Exhibit D1 is not a genuine Will is concerned, the learned counsel pointed out that in the absence of necessary pleading on this aspect of the matter by the contesting defendants and also sufficient evidence, the said contention is liable to be rejected as one devoid of merits. He also pointed out that the sequence of events would clearly indicate that late C. G. Rama Rao being the elder brother of the plaintiff took control of the management of the family immediately after the death of his father and was in a dominating position to exercise his control and Will among the members of the family and more particularly on the plaintiff who had just attained the age of majority and taking advantage of his fiduciary relationship and dominating position, was responsible for bringing up several transactions which cannot be made as a ground to reject the claim of the plaintiff for grant of probate. According to the learned counsel, to establish the case of estoppel, the contesting defendants were required to plead estoppel and abandonment of rights of the plaintiff and there being no pleading of abandonment or waiver by the plaintiff of his rights, the claim of the plaintiff for grant of probate cannot be negatived on the ground of estoppel. So far as the contention of the learned counsel for the appellants that the plaintiff had obtained the certified copy of the Will dated 20th April, 1970 from the office of the Sub-Registrar, which is supported by an entry made in the Register Exhibit P.23, the learned counsel pointed out that the entry in Exhibit P.23 shows that the name of one Smt. Muniyamma was struck off and in its place the name of plaintiff was written and therefore it is clear that late C. G. Rama Rao, with a view to create the knowledge of Will Exhibit P16 to the plaintiff, got an application filed in the name of the plaintiff for issue of certified copy of the said Will and therefore, this Court should reject the contention of the learned counsel for the appellants that the plaintiff had obtained the certified copy of the Will Exhibit P16. He further pointed out that on the ground of estoppel one can only seek title and it does not convey title and since the contesting defendants were aware of the Registered Will Exhibit P16, there cannot be a plea on estoppel against the plaintiff. In this connection, he drew our attention to the evidence of DW5, who was earlier the Law Officer of the 6th defendant who had admitted in his evidence that the Syndicate Bank had obtained certified copy of the Wil Exhibit P16 while advancing loan to the partnership Firm of M/s. C. G. Sastry. The learned counsel further pointed out that the admission of DW5 that he did not issue any notice to the plaintiff informing him about the Will Exhibit P16, clearly shows that the plaintiff was unaware of the existence of Exhibit P16 till 1982. Therefore, he submits that the appeal may be dismissed.

10. In the light of the rival contentions advanced by the learned counsel appearing for the parties the questions that would arise for consideration in this appeal can be formulated as follows :

1. Whether the finding recorded by the City Civil Judge that Will Exhibit P16 dated 20th April, 1970 is the last Will and testament of late C. G. Sastry and Will Exhibit D1 dated 14th November, 1970 is not a genuine Will, is justified

2. Whether the plaintiff is estopped from contending that the Will Exhibit D1 is not a genuine and valid Will

3. Whether the petition filed seeking probate is barred by limitation under Article 137 of the Limitation Act

4. Whether the petition filed seeking issue of probate by the plaintiff is not maintainable And if it is held that the petition is not maintainable, whether the prayer of the plaintiff seeking amendment of the plaint for grant of Letters of Administration should be allowed

5. Whether the City Civil Judge was justified in declaring the title to the properties covered under Exhibit P16 in the impugned judgment and order

11. Now, we will proceed to consider each one of the points formulated. However, we find it is convenient to deal with points 1 and 2 referred to above together as they are inter-linked with each other. Before we proceed to do so, we feel it is desirable to remind ourselves with regard to the law laid down by the Apex Court with regard to the approach the Court is required to make while deciding the dispute regarding execution, proof and genuineness of the Will.

In the case of H. Venkatachala Iyengar v. B. N. Thimmajamma, reported in AIR 1959 SC 443 [LQ/SC/1958/142] , the Supreme Court while dealing with the requirement to establish a Will, at paragraphs 20 to 22, of the judgment, has observed thus :

"20. There may, however, be cases in which the execution of the Will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated, and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator, the dispositions made in the Will may appear to be unnatural, improbable or unfair in the light of the relevant circumstances; or, the Will may otherwise indicate that the said dispositions may not be the result of the testator's free Will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last Will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free Will in executing the Will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.

21. ...The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.

22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions or Wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the Will has to prove the due and valid execution of the Will and that if there are any suspicious circumstances surrounding the execution of the Will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties."

12. Keeping the above principle in mind, now we will proceed to examine the questions formulated above.

Regardding Questions 1 an 2

So far as execution and proof and genuineness of Will Exhibit P16 is concerned, we may immediately point out that we have no hesitation on the basis of the evidence on record to agree with the finding recorded by the City Civil Judge that the plaintiff has established the execution and proof of the said Will and the said Will is a genuine Will. P.W. 2-Dr. K. V. Subbaraj, who is one of the attesting witnesses to the Will, who is also the family Doctor of late C. G. Sastry, has in his evidence stated that he had attested the Will Exhibit P16 of late C. G. Sastry and Exhibit P16(f) is his signature and one other attesting witness Dawalat Suryanarayana Setty also has attested Will Exhibit P16 and his signature is as per Exhibit P16(e) and the said Dawalat Suryanarayana Setty had attested the Will Exhibit P16 in his presence and late C. G. Sastry has written the Will in his own handwriting in his presence around 5.00 to 6.00 p.m. and put his signature in his presence. The said Will is also a registered Will. Nothing substantial has been brought out in the cross-examination to discredit his evidence. The Will Exhibit P16, admittedly, is a holograph Will of late C. G. Sastry. The Supreme Court in the case of Joyce Primrose Orestor (Mrs.) (Nee Vas) v. Vera Marie Vas, reported in (1996) 9 SCC 324 [LQ/SC/1996/789] regarding Holograph Will, has observed as follows :

"18. . . . . . . . . . .In that case, the Court referred to certain undisputed preliminary facts as follows : The testator, a well known wealthy lawyer, who died at the age of 97, had executed a Will when he was 93 years' old. He had made provision for his heirs by executing a number of documents, and the Will referred to the remaining property. The Will was witnessed by two persons. The entire Will was in the handwriting of the testator, corrected in various places and the corrections were initialled by him. It was admitted that the signature at the bottom of the Will was of the testator. The dispositions were very clear and detailed and it could not be said to be an unnatural document. There was no evidence to show that the propounders took any part in the execution of the Will. After stating these preliminary facts, the Court stated the approach to be made in the case of "holograph Will," thus :

"Further the fact that the Will is a holograph Will and admittedly in the hand of the testator and in the last paragraph of the Will the testator had stated that he had signed the Will in the presence of the witnesses and the witnesses had signed it in his presence and in the presence of each otherraise strong presumption of its regu-larityand of its being duly executed and attested. On these facts there is hardly any suspicious circumstance attached to this Will and it will in our opinion requirevery little evidence to prove due execution and attestation of the Will. There is no doubt about the genuineness of the signature of the testator, for it is admitted that the signature at the foot of the Will is his. The condition of the testator's mind is also not in doubt and he apparently had full testamentary capacity right up to March 1947, even though he was an old man of about 97 when he died on 1-4-1947. . . . . .There is nothing to show that the dispositions were not the result of the free Will and mind of the testator. Further, the propounders (namely, the appellants) had nothing to do with the execution of the Will and thus there are really no suspicious circumstances at all in this case. All that was required was to formally prove it, though the signature of the testator was admitted and it was also admitted that the whole Will was in his handwriting. It is in the background of these circumstances that we have to consider the evidence of the two attesting witnesses. . . . . . . . . ." (Emphasis supplied)"

Therefore, from the law enunciated by the Supreme Court in the case referred to above, it is clear that in the case of holograph Will, which is wholly in the handwriting of the testator, there is a greater presumption and the approach to be made by the Court while considering the evidence in a holograph Will is different. In the light of the evidence of P.W.-2 referred to above and also in the light of the details set out in the Will Exhibit P16, we are satisfied that the execution and genuineness of the said Will cannot be doubted in any manner and the plaintiff has successfully proved due execution and genuineness of the said Will. Therefore, as noticed by us earlier, we are of the view that the conclusion reached by the City Civil Judge with regard to the execution, proof and genuineness of Will Exhibit P16 is unexceptionable and is required to be accepted as correct. Now, the next question is, whether the contesting defendants have established the execution and genuineness of Will Exhibit D1 The evidence on record shows that one Nagesh Rao and Krishnan were the two attesting witnesses to the Will Exhibit D1 and both of them, during the pendency of the proceedings, had expired. Therefore, the contesting defendants were not in a position to examine the said attesting witnesses. However, one M. K. Ramadevan, who is the son of M. R. Krishnan, was examined as D.W. 4, to prove the signature of his father. D.W. 4, in his evidence, has stated that his father M. R. Krishnan was working as a Manager in Hotel Rajmahal and he was no more and he was acquainted with the signature of his father. He has identified the signature of his father in Exhibit D1 at Exhibit D1(a). In the course of examination he has also stated that his father was very close to late C. G. Sastry. He has denied the suggestion that Exhibit D1 is a photostat copy and for that reason he was unable to identify the signature of his father. While he admitted that his father was close to late C. G. Rama Rao, he has denied the suggestion that since excise licence was given by C. G. Rama Rao as a gift to his father, his father was obliged to sign Exhibit D1 as per Exhibit D1(a). The suggestion made to this witness on behalf of the plaintiff shows that the signature found in Will Exhibit D1, is the signature of M. R. Krishnan. Further, the son and power of attorney holder of the 5th defendant one B. Ravishankar Prabhu was examined as D.W. 3 in support of the case of the contesting defendants. In the course of examination it was suggested to D.W. 3 that a paper containing the signature of late C. G. Sastry was taken and Exhibit D1 was prepared. Therefore, from the very suggestion made to D.W. 3 it is clear that the plaintiff has admitted the signature contained in Exhibit D1 is the signature of late C. G. Sastry. D.W.3 has stated in his evidence that the other attesting witness Nagesh Rao is also dead. The plaintiff also has in his evidence admitted that M. R. Krishnan and M. Nagesh Rao had expired. Under these circumstances, we are of the view that the contesting defendants have established that the signature found in Exhibit D1 is the signature of late C. G. Sastry. D.W. 3, in the course of evidence has stated that since the defendant No. 5 was not in a position to give his evidence because of his poor health and hard hearing and loss of memory, and also in view of the fact that he was aware of the facts of the case, he has examined himself after obtaining power of attorney from his father. In the course of his evidence, he has referred to sequence of events by which the 5th defendant acquired title to the property covered under Will Exhibit P16. He has stated in his evidence that the Will Exhibit D1 is in the handwriting of Nagesh Rao. He has denied the suggestion that Will Exhibit D1 is not the original document and that it is a photo copy of the document. There is no suggestion made to D.W. 3 in the cross-examination that the Will Exhibit D1 is not in the handwriting of Sri Nagesh Rao. Therefore, we will have to proceed on the basis that the signature found in Will Exhibit D1 is the signature of late C. G. Sastry and it was written by Sri Nagesh Rao and both the attesting witness have signed the same. However, the question is, whether the said Will is a genuine Will of late C. G. Sastry As rightly pointed out by Sri Parasaran, prima facie the size of the paper in which it is written and the scribbling on the paper, gives scope for suspicion with regard to the due execution of the Will by late C. G. Sastry. It is also necessary to point out that even assuming that on account of the ill-health, late C. G. Sastry was not able to write the Will in his own handwriting as has been done by him while executing the Will Exhibit P16, Sri Holla has not been able to give us any one good ground as to why the Will Exhibit D1 came to be written in a small piece of paper roughly measuring 2" in length and 6 to 8" in breadth. The Will Exhibit D1 was executed on 14th November, 1970. The testator expired on 21st January, 1971. Therefore, the testator had sufficient time to get the Will executed in a full sheet of paper, which would prima facie earn the confidence of any one who looks into the Will and avoid giving scope to suspect the genuineness of the Will. However, having regard to the facts and circumstances of the case, in our considered view that circumstance alone should not persuade us to grant the relief sought for by the plaintiff. In our view, the conduct of the plaintiff totally disentitled him to turn round after accepting the genuineness of Will Exhibit D1 in the year 1971 to challenge the execution and genuineness of the said Will in the year 1983 merely on the ground that he had no knowledge of execution of Will Exhibit P16 earlier. All the circumstances pointed out by Sri Parasaran to show that the Will Exhibit D1 was surrounded by suspicious circumstances, as noticed by us earlier, was available to the plaintiff when he accepted the Will Exhibit D1 when he and other members of the family were informed of the same on the thirteenth day ceremony of late C. G. Sastry. Even according to P.W. 1, Sri Nagesh Rao handed over the cover containing the Will Exhibit D1 to the elder brother of the plaintiff late C. G. Rama Rao and late C. G. Rama Rao read the contents of the Will Exhibit D1. The Will specifically states that the earlier Will executed by the testator stood revoked. The said statement in the Will should invoke curiosity to verify about the execution of the earlier Will. Can it be believed, no one, including the plaintiff, did not bother to verify about the existence of earlier Will Further by means of Deed of Release Exhibit D10 dated 14th April, 1971, his brother C. G. Narasimha Murthy went out of the partnership by collecting sum of Rs. 1.50 lakh. Thereafter, C.G. Rama Rao constituted a partnership in the name and style of 'M/s. C.G. Sastry' by means of Exhibit D11 dated 15 April, 1971 with his mother Smt. Venkatalakshamma, his sister Smt. Padma and the plaintiff. As per the terms of the partnership, the plaintiff and his sister were given 37.5 per cent. share each, his brother and mother were given 12.5 per cent. share each. The plaintiff and his sister were given 37.5 per cent. share each as they had already had 25 per cent. share in the partnership constituted by their father. By means of Deed of Dissolution Exhibit D12 dated 10th May, 1972 the partnership firm, constituted by means of Exhibit D11, was dissolved and the business of the partnership was taken over by Sri C.G. Rama Rao by agreeing to give Rs. 7.90 lakh (Rupees seven lakh ninety thousand only) to other partners. The plaintiff, as his share, was given a sum of Rs. 3.82 (Rupees three lakh eighty two thousand only). This is clear from the recital in Exhibit D12. Thereafter, late C.G. Rama Rao re-constituted the partnership firm by means of partnership deed Exhibit D13 dated 11th May, 1972 along with his son C. R. Sathish. Subsequently he applied for a loan of Rs. 15.00 lakhs with the Syndicate Bank, which was subsequently modified to Rs. 13.50 lakhs and a Deed of Composition Exhibit D16 dated 6th May, 1974 came to be executed between late C.G. Rama Rao, C.R. Sathish and ICDS Ltd., by virtue of which the Bank granted loan. Exhibit D19 dated 15th January, 1976 shows that late C.G. Rama Rao and his children retired from the partnership and the business was taken over by the 5th defendant, and subsequently the 5th defendant by means of Deed of Partnership Exhibit D20 dated 16th January, 1976 constituted a partnership consisting of himself and one B. Ravishankar Prabhu, Pushpa Prabhu, Shridevi Prabhu and Srimathi Prabhu. The evidence of D.W. 3 shows that during the year 1979-80 the 5th defendant had demolished the existing building on the property in question and put up a nine storied building by investing about Rs. 1.50 crore. The development of the property by investing huge money and construction of new building, is not in serious dispute between the parties.Plaintiff is admittedly carrying on his Hotel business at Hotel Tajmahal which is situated very close to Hotel Rajmahal i.e., the property, which is the subject-matter of dispute in this appeal. Therefore, there cannot be any doubt that he had the knowledge of development of property in question by the 5th defendant by investing huge money.On the basis of the evidence on record we are also satisfied that the plaintiff had obtained the certified copy of the Will Exhibit P16. No doubt, it is strongly urged by Sri Parasaran that since the name of one Muniyamma was originally written in the Register Exhibit P23 at Exhibit P23(A) and subsequently the name of the plaintiff came to be inserted, the plaintiff did not obtain the copy of the Will Exhibit P16 and on the other hand C.G. Rama Rao got an application filed in the name of the plaintiff with a view to create knowledge of Will Exhibit P16 to the plaintiff and gave the said document as proof of title to the Syndicate Bank. We are unable to accede to this submission. It may be that initially the name of Muniyamma was written, but subsequently, it was struck off, presumably, as rightly pointed out by the learned counsel for the appellant that the plaintiff wanted a preference in issue of certified copy as against the application of Muniyamma. Exhibit P23 is the original of the Daily Register of Fees and other receipts maintained in the office of the Sub-Registrar. The entry registered at Sl. No. 4710 dated 12th August, 1977 in Exhibit P23 indicate that an application for issue of the certified copy of the Will Exhibit P16 was filed by C.G. Srinivas i.e., plaintiff. Exhibit P23 Register further shows that subsequently the name of Muniyamma was entered at item No. 4713. Therefore, it is reasonable to presume that the application was made by the plaintiff himself and certified copy of the Will Exhibit P16 was issued as per Exhibit D40.As noticed by us earlier, there is nothing on record or any other material is placed before the Court to show that the application, in the name of the plaintiff for issue of certified copy of the Will Exhibit P16, which was issued as per Exhibit D40, was made by C.G. Rama Rao, except the assertion made by Sri Parasaran in the course of the argument. Section 114 of the Evidence Act provides that the Court may presume the existence of any fact which it things likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. Clause (c) of the illustrations given to the said section provides that judicial and official acts have been regularly performed; and Cl.(f) of illustrations further provides that the common course of business had been followed in particular cases. Therefore, when Exhibit P23 Register indicates that an application for issue of the certified copy of the Will Exhibit P16 was made and it was issued as per Exhibit D40, it is reasonable to presume that the application was made by the plaintiff himself and it was obtained by him. Further, it is necessary to point out that to obtain a certified copy of the Will, one is required to produce the death certificate. The plaintiff has produced the certified copy of the death certificate of late C.G. Sastry as per Exhibit P17 in the suit. Exhibit P17 is dated 5th August, 1971. The application for certified copy of the Will Exhibit P16 was made on 12th August, 1971 i.e., five days after the issue of death certificate. It is not the case of the plaintiff that he had not applied for the death Certificate Exhibit P17 and the same was obtained by C.G. Rama Rao. Further, the plaintiff has also, admitted in the cross-examination that he has produced the death certificate of his father which is marked as Exhibit P17. It is useful to refer to the said statement which reads as follows :

"I have produced the death certificate of my father and the same is now marked as Exhibit P17."

The only explanation given by the plaintiff for his assertion that C.G. Rama Rao had applied for the certified copy of the Will Exhibit P16 and obtained the same as per Exhibit D40 is that the defendants 5 and 6 were having Exhibit D40 in their custody. In our view, merely because Exhibit D40, was with defendants 5 and 6, is not sufficient to come to the conclusion that an application for issue of certified copy of the Will Exhibit P16 was made by Rama Rao. Further, the circumstances that the name of Muniyamma was originally written in Exhibit P23 at Sl. No. 4710, in our view, is also not sufficient to infer that C.G. Rama Rao got the application filed in the name of the plaintiff with a view to create knowledge of the Will Exhibit P16 and after obtaining the same he had given the said document as a proof of title to Syndicate Bank, as strongly urged by Sri Parasaran.

Further, the Deed of Dissolution of Partnership Exhibit D12 dated 11th May, 1972, shows that a dispute between the partners had arisen. In this connection, it is useful to refer to the relevant portion of Exhibit D12, which reads as hereunder :

"Whereas in the course of business disputes have arisen between the parties regarding the conduct of business and the rights inter se between the parties regarding assets of the firm as also the assets of late C. G. Sastry.

And whereas, some of the parties are even prepared to agitate the matter in the Court of Law and whereas well-wishers of the parties and their family intervened and with their intervention disputes between the parties have been settled and whereas according to the above said settlement the parties have agreed to enter into a Deed of Dissolution on the following terms and conditions."

All the circumstances, as noticed by us earlier, would clearly point at the plaintiff as the one who had applied for the certified copy of the Will Exhibit P16 and obtained the same as per Exhibit D40. We are unable to accede to the submission of Sri Parasaran that the Syndicate Bank and the 6th defendant was committed serious lapse in not notifying the plaintiff about the Will Exhibit D40, which was in their custody; and therefore, it must be held that the plaintiff had no knowledge of the Will Exhibit P16 till July, 1982 as claimed by him. In our view, since the plaintiff was a partner to the partnership firm which came to be constituted after the death of his father late C. G. Sastry, by means of Deed of Partnership Exhibit D11 dated 15th April, 1971 and also a party to the Deed of Dissolution of Partnership as per Exhibit D12 dated 11th May, 1972, the Syndicate Bank and the 6th defendant, had no reason to suspect that the plaintiff was not aware of the Will Exhibit P16.

We are also unable to accede to the submission of Sri Parasaran that since the original application filed for issue of certified copy of the Will Exhibit P16 having not been produced before the Court, it must be assumed that the application for issue of the copy of the Will in question was not made by the plaintiff and it was made by C. G. Rama Rao. As noticed by us earlier, the Deed of Dissolution of Partnership Exhibit D12 dated 11th May, 1972, referred to above, refers to the dispute that has arisen between the partners. From this also it is reasonable to infer that the plaintiff who was the legatee under the Will Exhibit P16 was alone interested in obtaining the certified copy of the said Will and none else.Further, as a matter of fact, if C. G. Rama Rao, who is sought to be made as a villain in suppressing the Will Exhibit P16 and for creation of the Will Exhibit D1, had either the possession or access to the Will Exhibit P16 and if his intention was to keep the plaintiff in dark about the Will Exhibit P16, he would not have kept the original Will Exhibit P16 in the locker; either of his father or mother, to be traced by the plaintiff at a later date. In the light of what is stated above, we do not have any hesitation to take the view that the plaintiff had made an application for certified copy of the Will Exhibit P16 on 12th August, 1971 as found in the Daily Register Exhibit P23 and obtained the copy of the same as per Exhibit P40. This conclusion of ours is sufficient to reject the case of the plaintiff that he had no knowledge of the execution of the Will Exhibit P16 till he noticed it in the locker of his father/mother in July, 1982. Further, we are also of the view that in the facts and circumstances of the case, the two attesting witnesses to the Will Exhibit P16, i.e., Dr. K. V. Subbaraj and Dawalat Suryanarayana Shetty who are very closely associated with the plaintiff and his family, would not have kept quiet without disclosing to the plaintiff about the execution of the Will Exhibit P16 by his father or at least having signed some document as witness. The said Dr. K. V. Subbaraj was examined by the plaintiff in proof of the Will Exhibit P16 as P.W. 2. His evidence shows that his clinic and also the shop of Dawalat Suryanarayana Setty were located very close to the house of the plaintiff. No doubt, P.W. 2 has stated in his evidence that he was not aware of the contents of the Will Exhibit P16. In the facts and circumstances of the case, we find it difficult to believe the evidence of P.W. 2 that both the attesting witnesses, who were admittedly close to the late C. G. Sastry, would not have been informed of either the contents of the Will or at least the documents they had attested was the Will of the testator. Further, it is also difficult to believe that late C. G. Sastry who had appointed his wife Smt. Venkatalakshamma as executrix of the Will also would have been kept in dark about the execution of the Will Exhibit P16. Further, even if it has to be believed that neither the attesting witnesses nor the executrix of the Will was informed of the execution of the Will by late C. G. Sastry, it is reasonable to infer that at least the plaintiff would have been informed about the execution of the Will and its custody. It is also reasonable to infer that the testator of a registered Will would leave some information about the execution of the Will to be conveyed either to the legatee or the executor of the Will after his death. Further, the case put forward by the plaintiff that for the first time in July, 1982 he came to know about the Will Exhibit P16 when he was searching for old papers, cannot be believed at all as true for reasons more than one. The evidence on record shows that he was residing along with his mother and sister in the very house where the locker in which he is stated to have seen the Will Exhibit P16 was kept.The plaintiff in his evidence has stated that his elder brother C. G. Rama Rao came to the house and was living with them after the death of his father and left the house only in the year 1972. Further, admittedly, C. G. Rama Rao died on 25th August, 1977. In the plaint he had stated that he noticed the Will Exhibit P16 in the locker of his father. In this connection, it is useful to extract the statement made in the plaint which reads as hereunder :

". . . . . . .the plaintiff was able to find the original Registered Will dated 20th April, 1970,in a old locker of Sri C. G. Sastry kept in the upstairs. The plaintiff was searching for some documents andaccidentally came across the Registered Will and after going through the contents of the document, the plaintiff received a shock of his life that his eldest brother, viz., the deceased first defendant had cheated him."

13. However, in his deposition he has stated that he came across the Will Exhibit P16 in the chest of the Godrej bureau of his mother. The same reads as hereunder :

"In the month of June or July, 1982, I came to know about the execution of the Will by my father as per Ex. P16 for the first time. I was searching for my personal document, I was searching for my said document thinking that they may be in the Godrej Bureau "Chest" of my mother, at that time accidentally I came across a file in which Ex. P.16 was filed."

14. Therefore, it is clear that there is contradiction in the pleadings and in the evidence with regard to the manner in which he traced the Will Exhibit P16. This contradiction, to our mind, appears to have taken place on account of total falsity of the case put forward by him. It is impossible to believe that for a long period of eleven years, when the Will and other records were kept in the locker, the plaintiff, who was in the house, would not have noticed the existence of the Will in the locker either of his mother or father as claimed by him. Would he have not searched for his personal documents earlier How did his personal documents get mixed up with the Will For all these and many other questions the plaintiff cannot have any satisfactory and acceptable explanation. The very assertion made by the plaintiff that he for the first time noticed the Will Exhibit P16 in the year 1982 is itself sufficient to disbelieve his version that he had no knowledge of the said Will at any time earlier. He has admitted in his evidence that he has accepted the Will Exhibit D1 and it is only after he came to know of the Will Exhibit P16 in July, 1982, he started suspecting the genuineness of the Will Exhibit D1. The plaintiff did not call in question the correctness of Will Exhibit D1 during the life time of his brother C. G. Rama Rao. As noticed by us earlier, admittedly, he has accepted the Will Exhibit D1. He has acted upon the said Will, constituted a partnership firm along with his brother, mother and sister by means of Exhibit D11 dated 15th April, 1971 and was a party to Deed of Dissolution of partnership Exhibit D12 dated 11th May, 1972 and collected a sum of Rs. 3.82 lakh as his share in the partnership business; was a silent spectator for the development of the property by investment of huge money by the 5th defendant, by his conduct he held out to the entire world including the 5th and 6th defendants that he has accepted the Will Exhibit D1, and he had not acquired any right on the property in question as a legatee under Will Exhibit P16. The evidence of P.W. 1 clearly shows that he doubted the genuineness of Will Exhibit D1 for the first time when he saw the Will Exhibit P16 in the month of July, 1982. In this connection, it is useful to refer to his evidence, which reads as hereunder :

"When I saw Exhibit P16 (first Will) in the month of July, 1982, I doubted the genuineness of Exhibit D-1 (second Will)."

This statement of P.W. 1 clearly shows that he has accepted the Will Exhibit D1 to be a genuine Will, but he doubts its genuineness only after he came to know about the existence of the Will Exhibit P16. In our view, the genuineness of the second Will Exhibit D1 cannot be doubted only on account of the existence of the first Will. Further, P.W. 1 has also admitted the signature of M. R. Krishnan in exhibit Will Exhibit D1 in his deposition. This is clear from his evidence wherein he has stated as follows :

"Sri Krishnan told me at that time that some document said to be a Will of my father was brought to him after the death of Sri C. G. Sastry by Nagesh Rao and his signature was obtained on the said document by Sri Nagesh Rao.

He further told that his signature was obtained on the said document after 3-4 days after the death of my father."

The said evidence of P.W. 1 is clear proof of the fact that the signature of Krishnan in the Will Exhibit D1 was admitted by him. Similarly, Nagesh Rao's handwriting and signature is also admitted by the P.W. 1 in his evidence. In this connection, it is useful to refer to his evidence which reads as hereunder :

"The contents of Exhibit D1 (second Will) are in the handwriting of Sri Nagesh Rao."

Therefore, from the evidence of P.W. 1 himself, it is clear that the Will Exhibit D1 was attested by M. R. Krishnan and Nagesh Rao and the said Will was also in the hand writing of Sri Nagesh Rao. As noticed by us earlier, both the attesting witnesses have expired. D.W. 4, the son of M. R. Krishnan, has identified the signature of his father. While it is the submission of Sri Parasaran that the Will Exhibit D1 is a photostat copy, it is the submission of Sri Holla that the Will Exhibit D1 is the original. P.W. 2 in his evidence has no doubt stated that it is a photostat copy. However, DWs. 4 and 5 have asserted in their evidence that it is original. In our view, to decide the question that would arise for consideration as to whether the plaintiff can be permitted to go back on his statement that the Will Exhibit D1 executed by late C. G. Sastry is a genuine Will or not, we need not go into the question whether the Will Exhibit D1 is a photostat copy or the original It would not make any difference as the signature found in Will Exhibit D1 is the signature of late C. G. Sastry and the plaintiff had accepted the Will Exhibit D1 stated to have been executed by late C. G. Sastry and acted upon the same. His only contention has been that he did not suspect the genuineness of the Will Exhibit D1 because he was not aware of the Will Exhibit P16. P.W. 4-C. Aswthappa, who is the Assistant Director of Forensic Science Laboratory, Bangalore, has stated in his evidence that for ordinary man, the Will Exhibit D1 looks like original. The Supreme Court, while considering the evidential value of an expert witness, in the case of State of Himachal Pradesh v. Jailal, reported in 1999 (7) SCC 280 [LQ/SC/1999/853] : (AIR 1999 SC 3318 [LQ/SC/1999/853] ) at paragraph 18, has observed as follows (at p. 3321) :

"18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of conclusions."

It is also useful to refer to the relevant portion of the evidence of P.W. 4, which reads as hereunder :

". . . . . .The thickness of impression in the original source will reflect in the photostat. The thickness appearing in the hand written and the photostat impression of the same will be the same. The thickness of images in Ex. D-1 are directly proportional to the source. It is same, Ex. D-1 is exact replica of the source. The contents of the Ex. D-1 and its source are one and the same.If Ex. D-1 is shown to a ordinary man he may or he may not identify the original or photostat. For an ordinary man Ex. D-1 is looks like original, is true. By looking Ex. P-29 I cannot say whether it is a copy of Ex. D-1 without analysing the same. To naked eye Ex. P-29 and Ex. P-29 (a) looks like a copy. I have not examined cut ends of Ex. D-1 so I cannot say whether it was cut or torn from a bigger piece. . . . . . . . . .

A person can write with ink on paper like one used in Ex. D-1 with emulsion coating. . . . . . ." (Emphasis supplied)

15. The evidence of P.W. 4 referred to above clearly indicates that the contents of the Will Exhibit D1 and its source are one and the same. If the evidence of P.W. 4 is considered, in the light of law laid down by the Supreme Court in the case of Jailal (AIR 1999 SC 3318 [LQ/SC/1999/853] ) (supra), we are of the view that it is not safe to rely upon his evidence to take the view that the Will Exhibit D1 is not the original one and it is a photostat copy. However, as noticed by us earlier, whether the Will Exhibit D1 is original or a photostat copy, since the existence of the Will Exhibit D1 is not in dispute and the plaintiff had accepted the existence of the Will Exhibit D1, it will not make any difference.

16. The City Civil Judge negatived the contention of the contesting defendants 5 and 6 that the plaintiff is estopped for challenging the Will Exhibit D1 only on the ground that Will Exhibit D1 is surrounded by suspicious circumstances and the said Will does not satisfy the requirement of a Will. In our view, the entire approach made by the City Civil Judge on this question is erroneous in law. As noticed by us earlier, it is no doubt true that the size of the paper in which Will Exhibit D1 is written may lead to suspicious circumstances of due execution and genuineness of the Will. However, it is necessary to point out that if the scribe of the Will Exhibit D1 Sri Nagesh Rao,who is also one of the attesting witnesses along with M. R. Krishnan, were to be available to examine in the course of the proceedings, what explanation they would have offered for execution of the Will in a small piece of paper, is difficult to guess at this length of time. Therefore, once it is admitted by the plaintiff that he has accepted the Will Exhibit D1 and on that basis he was a party to several transactions and his statement that he came to know the Will Exhibit P16 for the first time in July, 1982, cannot be accepted as true, in our view, the plaintiff should not be permitted to challenge the validity of the Will Exhibit D1 after eleven years from the date when it came to light and had accepted the genuineness of the said Will.As noticed by us earlier, the plaintiff who is also carrying on a hotel business very close to Hotel Rajmahal, would definitely have the knowledge of the development of Hotel Rajmahal and the several transactions that had taken place even after he ceased to hold any interest in the said property by virtue of his going out of partnership after receiving an amount of Rs. 3.82 lakh in terms of deed of dissolution Exhibit D12 dated 11th May, 1972. The sum of Rs. 3.82 lakh in the year 1972 was a huge money. The evidence on record show that late C. G. Rama Rao, after the plaintiff went out of the partnership, applied for a loan of Rs. 15 lakh from Syndicate Bank. The property in question changed many hands and ultimately the appellant has become the owner of the said property. The elder brother of the plaintiff-Sri Rama Rao has expired. Plaintiff waited for five years to initiate the proceedings after his death. If Rama Rao were to be alive, he would have been in a position to counter each one of the grievances made against him by the plaintiff. In the case of B. L. Sreedhar v. K. M. Munireddy, reported in AIR 2003 SC 578 [LQ/SC/2002/1294 ;] ">AIR 2003 SC 578 [LQ/SC/2002/1294 ;] [LQ/SC/2002/1294 ;] : (2003 AIR - Kant HCR 257), the Supreme Court has laid down that though estoppel is described a mere rule of evidence, it may have the effect of creating substantive rights as against the person estopped. In the said decision, it is further observed that an estoppel, which enables a party as against another party to claim a right over a party which in fact he does not possess is described as estoppel by negligence or by conduct or by representation or by holding out the ostensible authority. The Supreme Court, after discussing the law relating to estoppel has succinctly, at paragraphs 23 to 27 and 37, observed as follows:

"23. "Estoppe," commeth of a French word "estoupe" from whence the English word stopped, and it is called an estoppel, or conclusion, because a man's own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth; and Littleton's case proveth this description" (Co. Litt, 352 a. where it is said estoppel is of three kinds, i.e., matter (1) of record, (2) in writing, i.e., semble, by deed, (3) in Paiis). To the same effect is the definition in Termes de la Ley. (See Stroud's Judicial Dictionary, Fourth Edition, Page 943).

24. "An Estoppel," says Lord Coke, "is where a man is concluded by his own act of acceptance to say the truth." Mr. Smith, in his note to the Duchess of Kingston's case, characterizes this definition as a little startling but it nevertheless gives a good idea of what it is, by no means easy to include within the limits of a definition. (1 Smith L.C. 760).

25. Though estoppel is described as a mere rule of evidence, it may have the effect of creating substantive rights as against the person estopped. An estoppel which enables a party as against another party to claim a right of property which in fact he does not possesses is described as estoppel by negligence or by conduct or by representation or by holding out ostensible authority.

26. Estoppel, then, may itself be the foundation of a right as against the person estopped, and indeed, if it were not so, it is difficult to see what protection the principle of estoppel can afford to the person by whom it may be invoked or what disability it can create in the person against whom it operates in cases affecting rights. Where rights are involved estoppel may with equal justification be described both as a rule of evidence and as a rule creating or defeating rights. It would be useful to refer to this connection to the case of Depuru Veeraraghava Reddi v. Depuru Kamalamma (AIR 1951 Madras 403) where Vishwanatha Shastry, J. observed (at p. 405) :

"An estoppel though a branch of the law of evidence is also capable of being viewed as a substantive rule of law insofar as it helps to create or defeat rights which would not exist and be taken away but for that doctrine.

27. Of course, an estoppel cannot have the effect of conferring upon a person a legal status expressly denied to him by a statute. But where such is not the case a right may be claimed as having came into existence on the basis of estoppel and it is capable of being enforced or defenced as against the person precluded from denying it.

28 to 36. . . . . . . . .

37. If a man either by word or by consent has intimated that he consents to an act which has been done and that he will not offer any opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that which they otherwise might have abstained from, he cannot question legality of the act he had sanctioned to the prejudice of these who have so given faith to his words or to the fair inference to be drawn from his conduct."

No doubt, it is the contention of Sri Parasaran that since the plaintiff was not aware of the Will Exhibit P16 and he was totally kept in dark about the execution of the said Will in his favour by his elder brother late C. G. Rama Rao, there is absolutely no scope to deny relief to the plaintiff on the ground of estoppel as according to the learned counsel, the essential element of waiver is that there has to be a voluntary and intention of the relinquishment of a known right or such conduct as warrants the inference of relinquishment of such right and the said requirement is not satisfied in this case. We are unable to accede to this submission. So far as estoppel is concerned, it is necessary to point out that estoppel may result though the party estopped did not intend to lose any existing right. However, in the case of waiver, the essential element is actual intention to abandon or surrender such right. In the instant case, as pointed out by us earlier, the plaintiff having accepted the Will Exhibit D1 is estopped from going back on that and turn round contending that the Will is not genuine. We are unable to accede to the submission of Sri Parasaran that in the instant case there is no estoppel against the plaintiff, as the contesting defendants did not act upon the conduct or the assurance held out by the plaintiff, since according to the learned counsel, the said C. G. Rama Rao and defendants 5 and 6 were fully aware of existence of Will Exhibit P16. So long as the Will Exhibit D1 in unequivocal terms states that the testator has revoked the earlier Will, the knowledge of C. G. Rama Rao and defendants 5 and 6 about the existence of Will Exhibit P16, in our view, would not make any difference so far as the plea of estoppel against plaintiff is concerned. In this connection, it is useful to refer to S. 115 of the Evidence Act which states that when a person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative, shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. Instead of challenging the Will Exhibit D1 as soon as it was brought to his notice he had accepted the said Will. Under these circumstances, if the plaintiff has accepted the Will Exhibit D1 and on that basis the plaintiff and his brother, mother and sister have dealt with their rights in respect of the property covered under the Will Exhibit P16 and the defendants 5 and 6, who were total strangers to the family, had dealt with the property and developed the same by investing huge money to the knowledge of the plaintiff, the plaintiff cannot be permitted to go back on his representation and conduct, which indicates that he had accepted the Will Exhibit D1 to the detriment of the 5th defendant. In our view, the law enunciated by the Supreme Court in the case of B. L. Sreedhar (supra) would fully apply to the facts of the present case.

17. It is necessary to point out that it is not the question of the plaintiff abandoning or waiving his rights by virtue of the Will Exhibit D1. The question is that the plaintiff having accepted the genuineness of the Will Exhibit D1 and thereafter being a party to several transactions and allowed the third parties to deal with the property in question, after eleven years from the date of the death of testator of the Will Exhibit D1, can he be permitted to turn round and contend that the Will Exhibit D1 is not a genuine Will and a fabricated one and he had accepted the said Will because he was not aware of the Will Exhibit P16 till July, 1982 Therefore, we are of the view that the plaintiff should be non-suited mainly on the ground that he came to know the execution of the Will Exhibit P16 only in July, 1982, is totally unbelievable and false and he has made that claim with an oblique motive after coming to know about the development of property by the 6th defendant in the year 1980; and the conduct of the plaintiff totally estopps him from challenging the correctness of the Will Exhibit D1 at a belated stage. Accordingly questions 1 and 2 answered.

Regarding Question 3:

Now, the next question that is to be considered is, whether the petition filed seeking probate is barred by limitation under Art. 137 of the Limitation Act No doubt, Sri Holla has strongly urged that the proceedings initiated for grant of probate is barred by limitation as according to him the provisions contained under Art. 137 of the Limitation Act has to be made applicable in the absence of any other provisions in the Limitation Act prescribing the period of limitation seeking issue of probate. Therefore, he submits that since the proceedings were initiated by the plaintiff on 21st January, 1983 and the testator had expired on 21st January, 1971 and the proceedings were admittedly, initiated beyond three years from the date of death of the testator, the City Civil Judge ought to have held that the proceedings initiated for grant of probate was barred by limitation. In our considered view, there is no merit in the submission of Sri Holla. The City Civil Judge, after referring to the decision of the Punjab and Haryana High Court in the case of State of Punjab v. Vishwajit Singh, reported in AIR 1987 Punj and Har 126, has taken the view that the provisions of Limitation Act has no application to the proceedings initiated for grant of probate. We do not find any error in the said conclusion reached by the City Civil Judge. The application filed for grant of probate or letters of administration are not applications within the meaning of Art. 137 of the Limitation Act. They are not actions in law. In an application filed for grant of probate or letters of administration no right is asserted or claimed by the applicant and the applicant only seeks recognition from the Court to perform a duty and no rights of the applicant are settled or secured in a legal sense. In this connection, it is useful to refer to the observation made by the Division Bench of Madras High Court in the case of S. Krishnaswamy v. E. Devarajan, reported in AIR 1971 Mad 214 wherein at para- graphs 17 to 20, the Court has observed as follows :

"17. In a proceeding or in other words, in an application filed for grant of probate of 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. The duty is only moral and it is not legal. There is no law which 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 a 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 Art. 137 of the Limitation Act, 1963.

18. There is another angle to view the matter from, and that is since the right to apply is a recurring one, considering the nature of the proceedings, it will be inappropriate to fall back upon Art. 137 of the Limitation Act, 1963. It will be sufficient if we make a reference, as follows to the pronouncements, which have expressed such a view :

(1) Remanand Thakur v. Parmanand Thakur, AIR 1982 Pat 87 [LQ/PatHC/1981/142] and (2) Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani, AIR 1983 Bom 268 [LQ/BomHC/1983/93] ."

But, there is no need to express any view of ours over this aspect, since we have categorically formed the opinion that the proceedings for grant of probate or Letters of Administration could not fulfil the character of an 'application' and the person, who initiates such proceedings cannot have the character of an 'applicant.'

19. We must record here that the present references have come to be made by Janarthanam, J. The learned Judge was impelled to make the references in view of the two pronouncements of two learned Judges of this Court, each taking a different in the matter of the Last Will and Testament of V. S. Ranganathachariar (O.P. No. 133 of 1989 Order dated 24-8-1989 reported in AIR 1990 NOC 139 (Madras) held that in such proceedings, the limitation question would not arise. However, M. Srinivasan, J. In Sakunthala v. Minor Vijayalakshmi (T.O.S. No. 23 of 1985 and Appl. No. 181 of 1988 and 1693 of 1989, judgment dt. 26-9-1989 concisely reported in 1989 TNLJ 333) held the other way about M. Srinivasan, J., was of the view that the pronouncement of the Supreme Court in the Kerala State Electricity Board V.T.P. Kunhaliumma, AIR 1977 SC 282 [LQ/SC/1976/406] , has settled the law in unmistakable terms and the learned Judge also did not fall in line with the thinking that since the right to apply is a recurring one the question of limitation would not arise.

20. We have now, as per our proceeding (preceding) discussion, settled the question and we hold that Art. 137 of the Limitation Act would not apply to the proceedings filed for grant of probate or Letters of Administration with or without the Will annexed. Before concluding, we must point out that though the proceedings filed for grant of probate or Letters of Administration may not come within the mischief of Art. 137 of the Limitation Act, 1963, yet the delay aspect is relevant to test the genuineness of the Will propounded. Delay in taking steps gives rise to suspicion and the longer the delay the stronger the suspicion. This is an aspect for consideration of the Court while dealing with the request. We can only leave this aspect at that. Now we have answered the references, the matters will have to go before the learned single Judge, who could deal with them on merits."

18. The Division Bench of Allahabad High Court in the case of Smt. Sakuntala Devi v. Ladly Mohan Mathur, reported in 1986 (2) Civil LJ 19, while considering the question that the petition for grant of probate was filed after 13 years of the death of testator and, therefore, the Will propounded is surrounded by suspicious circumstances, took the view that there is no limitation prescribed seeking probate of a duty executed Will. Similar is the view taken by the Bombay High Court in the case of Vasudev Daulatram v. Sajni Prem Lalwani, reported in AIR 1983 Bom 268 [LQ/BomHC/1983/93] .

19.We are in respectful agreement with the views expressed by the High Court of Punjab and Haryana, High Court of Madras, High Court of Allahabad and the High Court of Bombay. Since we have taken the view that in a proceeding or application filed for grant of probate or Letters of Administration no right is asserted or claimed by an applicant and the applicant only seeks recognition of the Court to perform duty, the application filed for issue of probate does not fall within Art. 137 of the Limitation Act, we are of the view, the observation made by the Supreme Court in the case of State of Himachal Pradesh v. Jailal, reported in 1999 (7) SCC 280 [LQ/SC/1999/853] : (AIR 1999 SC 3318 [LQ/SC/1999/853] ) relied upon by Sri Holla, has no application to a proceeding initiated for grant of probate or Letters of Administration.Therefore, question No. 3, referred to above, is answered against the appellant.

Regarding Question 4 :

Late C. G. Sastry has appointed his wife Smt. Venkatalakshamma as the Executrix of the Will Exhibit P16. On the date of filing of the petition praying for grant of probate she was alive and she was also alive even on the date of passing of the judgment impugned in this appeal. It is only in the year 1991, during the pendency of the appeal before this Court, she expired. Section 222 of the Indian Succession Act provides that probate shall be granted only to an executor appointed by the Will. Since admittedly Smt. Venkatalakshmma was appointed as an executrix of the Will, she alone could have made an application for issue of the probate. Admittedly, she has not made any such application. Therefore, the application filed by the plaintiff for issue of the probate, as rightly pointed out by the learned counsel for the appellant, was not maintainable and was liable to be rejected. In fact, Sri Parasaran also fairly did not dispute this position. Now, the next question is whether the application IA.I. of 2003 filed by the plaintiff under S. 151 of the Code of Civil Procedure seeking for amendment of the plaint and his prayer for grant of Letters of Administration should be allowed And if it is to be allowed, whether the plaintiff is entitled for grant of Letters of Administration Section 229 of the Indian Succession Act provides that when a person appointed as an executor of the Will has not renounced the executorship. Letters of Administration shall not be granted to any other person until a citation has been issued calling upon the executor to accept or renounce his executorship. Section 230 of theprovides that the renunciation may be made orally in the presence of the Judge, or by a writing signed by the person renouncing, and when made shall preclude him from ever thereafter applying for probate of the Will appointing him executor. It is not the case of the plaintiff that a citation was taken to Smt. Venkata-lakshamma, who was defendant No. 4 in the suit, calling upon her either to accept or renounce her executrix-ship. Further, there is nothing on record to show that she has renounced her executrix-ship in the course of the proceedings before the City Civil Judge. Therefore, there cannot be any doubt, as noticed by us earlier that the petition filed seeking for grant of probate was not maintainable and the City Civil Judge should have dismissed the petition solely on that ground. However, during the pendency of the appeal, Smt. Venkatalakshamma has expired and, therefore, the question of her renouncing her executorship or taking out citation to her does not arise. Generally amendment of the plaint or written statement is liberally allowed so long as it does not change the nature of the suit. However, in the objections filed on behalf of the contesting defendants, including defendants 5 and 6, and for that matter even 4th defendant, who was an executrix of the Will, an objection contending that the petition filed for probate by the plaintiff was not maintainable, was not raised.By this, we should not be understood as having expressed that the Court can proceed to grant probate in the absence of any objection being raised on that behalf. We have referred to the circumstances of defendants 4 to 6 not raising any objection with regard to the maintainability of the petition only for the purpose of considering even at the stage of appeal whether this Court can permit amendment of the prayer made in the petition filed seeking issue of Probate. The parties have gone to trial with regard to the execution and genuineness of two Wills Exhibit P16 relied upon by the plaintiff, and Exhibit D1 relied upon by the contesting defendants. If the plaintiff succeeds in establishing Will Exhibit P16 as a last Will and testament of late C. G. Sastry, in the absence of executor having been appointed, he would be entitled for issue of probate. No doubt, there is inordinate delay in making the application seeking amendment of the prayer of the petition/plaint for grant of Letters of Administration instead of probate. We have taken the view that there is no limitation prescribed seeking issue of probate. Admittedly, the executrix of the Will has expired. Under these circumstances, in our view, if the prayer for amendment of the plaint is allowed seeking for grant of Letters of Administration instead of probate, it would not prejudice the rights of the contesting defendants in their defence in any manner. The issue of probate or letters of administration is only a matter of formality. We do not find any substantial difference in the procedure required to be adopted by the Court while considering the prayer for either grant of probate of Letters of Administration. In our view, the decision of this Court in the case of Gajanan Sambarao Gunjikar v. Vishwanath Mahadev Deshpande, reported in 1989 (2) Kant LJ 434, relied upon by the counsel for the appellant, has no application to the facts of the present case.In that case, while considering the case of a party who was not made as a party to the proceedings and also had prima facie established that he has substantial interest in the property which was the subject-matter of the dispute in the proceedings relating to grant of probate, this Court took the view that non-issue of citation seriously affects his right and, therefore, an order made issuing Letters of Administration is required to be set aside.That is not the position in the present case. The 4th defendant, who was appointed as executrix of the Will Exhibit P16 and the appellant were parties to the proceedings. Therefore, we are of the view that it would be in the interest of justice to allow the application filed seeking for amendment of the plaint for grant of Letters of Administration instead of probate, is required to be allowed. Accordingly it is allowed. However, in the light of our conclusions on questions 1 and 2 referred to above, we make it clear that on merits the plaintiff will not be entitled for issue of Letters of Administration.

Regarding Question 5 :

On the question whether the Probate Court is competent to go into the question of title, the learned counsel for the appellant-Sri Holla, and the learned counsel for the respondent-Sri Parasaran are not at issue. Both of them have agreed that the City Civil Judge could not have pronounced on the title in a proceedings initiated for issue of probate. It is well-settled that Probate Court can only go into the question as to whether the applicant who had made an application for issue of probate, is entitled for issue of probate or not The title of the property which is covered under the Will cannot be gone into by the Probate Court. In this connection, it is useful to refer to the observation made by the Supreme Court in the case of Chiranjilal Shrilal Goenka v. Jasjit Singh, reported in 1993 (2) SCC 507 [LQ/SC/1993/243] : (1993 AIR SCW 1439). In the said decision the Supreme Court, while considering the issue relating to grant of probate, at paragraph 15 has observed as follows (at para 15) :

". . . . . . .Therefore the only issue in a probate proceedings relates to the genuineness and due execution of the Will and the Court itself is under duty to determine it and preserve the original Will in its custody. The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the Probate Court. This is clearly manifested in the fascicle of the provisions of the. The probate proceedings shall be conducted by the Probate Court in the manner prescribed in the and in no other ways. The grant or probate with a copy of the Will annexed establishes conclusively as to the appointment of the executor and the valid execution of the Will. Thus it does no more than establish the factum of the Will and the legal character of the executor. Probate Court does not decide any question of title or of the existence of the property itself.

Similar is the view expressed by the Supreme Court in the case of Mrs. Hem Nolini Judah v. Isolyne Sarojbashini, reported in AIR 1962 SC 1471 [LQ/SC/1962/76] .Therefore, point No. 5 is answered in the negative and the declaration made by the City Civil Judge with regard to the title to the properties covered by the Will Exhibit P16 and Exhibit D1 is liable to be set aside.

20. In the light of the discussion made above, the judgment and order dated 12th July, 2000 made in O.S. No. 32 of 1990 is set aside and Suit O.S. No. 32 of 1990 is dismissed. The appellant is entitled for the cost of the proceedings throughout.