(1.) This application arises out of a probate proceeding for the grant of probate of a will. The objector who is the petitioner before us took an objection that the application filed for probate of the will executed by one Munna Lal Thakur, who died on 12-10-1968, was barred by Limitation under Article 137 of the Limitation Act 1963 in as much as having been filed on 11-7-1979 beyond the prescribed period of three years under said Article.

(2.) The learned District Judge following a decision of the Calcutta High Court has rejected this plea. Accordingly the objector has come to this Court and a learned single Judge before whom the case was placed for hearing has referred it to a Division Bench.

(3.) Article 137 of the new Limitation Act is the residuary Article like Article 181 of the old Limitation Act but with certain modification in the language and its classification which in our view is of great importance. Article 181 was placed in the Third Division dealing with the application, but Article 137 has been placed separately although under the Third Division in a separate part to govern "other applications" apparently thereby indicating the intention of the legislature that the expression application was not confined to the types of cases where the other articles under the Third Division were placed. Apart from the change of the division, the words used in Article 137 are also slightly different. The words "any other application" under Article 137 cannot be said on the principle of ejusdem generis applies only to applications under the Code of Civil Procedure other than those mentioned in Part I of the Third Division. In the old Limitation Act the word "application" was not defined and all that was defined was the expression "applicant". The changed definition of the words "applicant" and introduction of the definition of the word "application" in Section 2 (a) and 2 (b) of the 1973 Act indicates the object of the Limitation Act to include petitions under special laws other than the Code of Civil Procedure. It was on this account that the operation of Article 181 was limited to applications made under the Civil Procedure Code particularly in view of the fact that all the other applications in the division in which Article 181 was placed referred to the applications under the Code of Civil Procedure and, therefore, almost all the High Courts including the Supreme Court had taken the view that the "applications" referred to in Article 181, by the application of the doctrine of ejusdem generis applied only to the applications under the Code of Civil Procedure.

(4.) The Supreme Court in the case of Kerala S. E. Board v. T. P. Kunhaliumma, (AIR 1977 SC 282 [LQ/SC/1976/406] ) has noticed the differences pointed out above and has overruled its earlier view that Article 137 applied only to application, made under the Code of Civil Procedure.

(5.) But notwithstanding the taking of this view of the legal position regarding the construction of Article 137, the petitioner in out considered opinion still must fail inasmuch as in the case of the application for grant of Probate or Letters of Administration, it is difficult to find out as to when the right to apply accrues because unless that date can be fixed, there is no question of starting of the period of limitation. Although we could not find any decision on this question of our own High Court, we find this question having been discussed by a Bench of the Calcutta High Court in the case of Kalinath v. Nagendra Nath, (AIR 1959 Cal 81 [LQ/CalHC/1957/103] ) though it was a case under the old Limitation Act where the learned Judges were confronted with Article 181 of the Limitation Act. The argument advanced in that case was that the starting point for computing the period of limitation would be the date when the executor for the first time became aware of the will. This argument was rejected as Mr. Madhusudan Singh had contended that the starting date for the said purpose would be the date of the death of the testator. We are unable to accept this contention as the right to apply for a probate accrues from day to day so long as the will remains unprobated. In other words, the right to apply accrues every day and the cause of action for an application for probate arises every moment so long as the will remains unprobated and, therefore, for such an application there is no period of limitation and for taking this view we find full support from the Calcutta case which also finds support from the view taken by the Madras High Court in the case of Ghanamuthu Upadesi v. Vana Koilpillai Nadan, ((1894) ILR 17 Mad 379). Therefore, while-holding that the Article 137 of the new Limitation Act applies to any petition or application filed under any Act, we do not feel any difficulty to come to the conclusion that so far as the application for grant of a Probate or Letters of Administration is concerned, they are not governed by any Article of the Limitation Act. The application accordingly fails and, is hereby dismissed, but in the circumstances, we shall leave the parties to bear their own costs.