B. LENTIN, J.

The petitioner seeks Letters of Administration with the Will annexed of his father Daulatram Jamnadas Sadarangani (referred to hereafter as "the deceased"), who died on 3rd January, 1974. The caveatrix is the petitioners sister and the deceaseds daughter. In her affidavit-in-support of the caveat she resists the petitioner on the ground that Will which is in the handwriting of her brother Kanayalal with whom the deceased was not on good terms is a forgey as the signature on the Will is not of her father, and "appears to have been forged after the death of my father" and one of the attesting witnessess Dr. Tapan Bhattacharya have been prevailed upon to attest the document and further that the said Will cannot be the free Will of her father. At the hearing, I was invited to raise the issue of limitation which being a point of law I did, though not averred in the caveatrixs affidavit.

2. The following issues were raised :---

"1. Whether suit is barred by Law of Limitation

2. Whether the writing dated 11th February, 1968 is the last Will and Testament of the deceased

3. Whether the said writing is a forgery as stated in paras 4, 8 and 11 of the affidavit in support of the caveat

4. Whether the said writing is not the free Will of the deceased as stated in paras 9 and 20 of the said affdavit

5. What relief, if any, is the petitioner entitled to "

3. The petitioner led the evidence of one of the attesting witnesses Tapan Kumar Bhattacharya. The caveatrix examined herself as a witness.

4. The gist of the evidence of Tapan Bhattacharya who is the Project Manager in Central Electronics Ltd. at Ghaziabad, is that between November/December 1965 till July/August 1968 he was the deceaseds tenant and next-door neighbour in the deceaseds building. Thereafter Bhattacharya shifted to Santa Cruz and thence to Delhi in June 1977. During Bhattacharyas stay in the deceaseds building, he and the decease were on visiting terms. On 11th February, 1968 at about 10-00 a.m. at the deceaseds behest, Bhattacharya went to the deceaseds flat. Two other persons were already there. The deceased told Battacharya that he wanted Bhattacharya to attest his Will which he, the deceased, was writing out. The deceased wrote for about 10 minutes. Thereafter the deceased asked his younger son Kanayalal had copied and thereafter signed the writing in the presence of Bhattacharya and Kanayalal. The deceased then asked Bhattacharya to sign the writing as a witness. Bhattacharya did so in the presence of the deceased and Kanayalal. The deceased then took paper from Bhattacharya and gave it to Kanayalal and asked him to sign it as a witness. Kanayalal did so in the presence of the deceased and Bhattacharya identified the writing dated 11th February, 1961 (Ex. A) as the one which was executed by the deceased and attested by Bhattacharya and Kanayalal that morning. Bhattacharya also identified his signature, Kanayalals signature, and the signature of the deceased on the writing. When the deceased signed the writing that day his signature was not smudged. He was about 60 years of age when he signed the writing. His physical and mental conditions were normal as usual.

5. Mr. Dalpatrai however invited me to reject Bhattacharyas evidence on 10 counts.

(A) Relying on the caveatrixs version that she had never seen Bhattacharya before, and emphasising Bhattacharyas inability to produce the rent receipts, Mr. Dalpatrai urged that there was nothing beyond Bhattacharyas word that he was the deceaseds tenant which according to Mr. Dalpatrai was an after-thought on Bhattacharyas part to account for his presence at the deceaseds flat that day. On that aspect Bhattacharyas explanation is cogent, namely that he did not preserve the rent receipts after he shifted to Santa Cruz in July/August 1968. He also stated that he was in Government service in the Bhabha Atomic Research centre in whose records his residential address would be found if the caveatrix cared to verify. What however is of supreme importance is that Bhattacharya had filed an affidavit dated 15th March, 1977 (Ex.1), in a partition suit filed in this Court by the caveatrix against her bother and sister. In that affidavit, Bhattacharya has stated that in November 1968 he was the deceaseds tenant. This has not been denied by the caveatrix, despite the fact that she filed her affidavit-in-reply on 21st April, 1977. If Bhattacharya was never the tenant of the deceased as now suggested by the caveatrix, nothing prevented her from saying so at the earliest opportunity, which was in her affidavit-in-reply dated 21st April, 1977. Faced with this dilemma, the caveatrix attempted to explain away this curious lapse in her part by affecting that she had not read Bhattacharyas affidavit dated 15th March, 1977 despite the fact that on her own admission she herself had given instruction to her Advocate for filing her affidavit-in-reply dated 21st April, 1977. It is intriguing how the caveatrix could possibly have given instructions to her Advocate to reply to Bhattacharyas affidavit 15th March, 1977, if as she now affects, she did not even read that affidavit. To make matters worse, she has none to believe that she did not even read her own affidavit-in-reply dated 21st April, 1977 before signing it and that it is her practice never to ready any documents which she signs. The caveatrix is not some illiterate pardanashin woman. She gave her evidence in fluent English with intelligence not unmixed with shrewdness. What is more, on her own showing she even manages her husbands business as a builder and his factory where he manufactures pressure cookers and other items. This is extremely creditable. But not when she says she never even reads the documents she signs. Comment is unnecessary. There is no doubt that the caveatrixs version of Bhattacharya not being the deceaseds flat tenant and hence could not have come to the deceaseds flat that day, is patently an after-though tailored to meet the exigency of the moment.

(B) Relying on the caveatrixs version that she remained with her parents every day for 24 hours, Mr. dalpatrai next urged that Bhattacharya could not have been in the deceaseds flat that day, as Bhattacharya did not even recognise the caveatrix in Court which he would have done had he been on visiting terms with the deceased. Apart form the fact that the caveatrixs assertion of her being with her parents 24 hours of the day is an exaggeration. It is not that Bhattacharya totally failed to recognise the caveatrix when pointed out to him in the Court-room by Mr. Dalpatrai. What Bhattacharya said in his evidence was that the caveatrix resembled the deceaseds youngest daughter. A perfectly correct answer in view of the fact he saw the caveatrix after a long span of 15 years.

(C) Mr. Dalpatrai urged that the affidavit (Ex.1) made by Bhattacharya on 15th March, 1977 in the caveatrixs partition suit was not sworn before an officer of this Court but in the Metropolitan Magistrates Court at Bandra. It is impossible to come to the conclusion that thereby Bhattacharya was not present at the house of the deceased when he executed the Will as suggested by Mr. Dalpatrai. Nothing turns on the aspect that the affidavit was sworn by Bhattacharya in the Court learned Magistrate at Bandra but rather on the contents of that affidavit which are pari materia with Bhattacharyas deposition in this Court. I need not pause to reject Mr. Dalpatrais contention that no Advocate practising criminal law could have prepared that affidavit, which according to Mr. Dalpatrai was prepared by "some solicitor who understood the intricacies of civil litigation". There is no warrant for this assumption and ipse dixit assailed by Mr. Dalpatrai across the bar, with nothing to commend either. Bhattacharyas affidavit is a short and simple affidavit which sets out the events when the deceased executed his Will. I am not prepared to accept the uncalled for aspersion on capabilities of Advocates in general or this Advocate in particular, which Mr. Dalpatrai invites me to do.

(D) Mr. Dalpatrai urged that there was no necessity for the deceased to send for Bhattacharya as there already two person with the deceased that morning. Obviously the deceased wanted some disinterested person known to him to be an attesting witness.

(E) Mr. Dalpatrai urged that it was highly improbable that by reason of their age difference, the deceased would send for Bhattacharya to attest his Will. It is true deceased was order than Bhattacharya but then surely that cannot be a ground for rejecting Bhattacharyas presence at the house of the deceased that day for attesting the Will.

(F) It was urged by Mr. Dalpatrai that after 1968 Bhattacharya did not meet the deceased and had no contact with him. This discloses more Bhattacharyas disinterestedness than otherwise and cannot be a ground for inferring that Bhattacharya was not present in the house of the deceased that day.

(G) According to Mr. Dalpatrai it was mystery how Bhattacharya was contacted to make his affidavit dated 15th March, 1977 in the caveatrixs partition suit. On that aspect there is Bhattacharyas evidence that in March 1977 the deceaseds other son Vasudev (the presents petitioner) contacted him at his Deonar residence and after making a prior appointment took Bhattacharya to an Advocate to whom Bhattacharya narrated what had transpired in the house of the deceased on 11th February, 1967 and on the basis of those instructions Bhattacharyas affidavit dated 15th March, 1977 was prepared.

(H) Mr. Dalpatrai next urged that the Will could not have been copied out by Kanayalal as he was residing in the I.I.T. Hostel at Pawai. The answer is to be found from the caveatrixs evidence that Kanayalal often came to visit his parents at their residence. Moreover, 11th February, 1968 was a Sunday which would also account for the presence both of Kanayalal and Bhattacharya at the house of the deceased that day.

(1) Mr. Dalpatrai urged that pressure had been brought upon Bhattacharya. This is yet another ipse dixit (vague as it is) assailed across the Bar, with nothing to commend it.

(J) Mr. Dalpatrai urged that Bhattacharya attested the Will after the death of the deceased in order to oblige his friend Kanayalal Mr. Dalpatrai discreetly refrained from suggesting why Bhattacharya who has no animus against the caveatrix should enter into any such conspiracy. Bhattacharya however stated that though he knew Kanayalal as an acquaintance, he would not call him a friend. Mr. Dalpatrai however did not say and no doubt wisely so, why Kanayalal would go out of his way to set up a false Will under which even he, Kanayalal is not a beneficiary, the entire estate having been bequeathed by the deceased to his widow.

6. Bhattacharyas evidence discloses in ample measure the due execution and attestation of the Will that day and that the deceased was in a sound and disposing state of mind, memory and understanding. None of these aspects were deflected by the cross-examination he was put through. For that matter, on the admission of the caveatrix herself in her evidence, the deceased was physically and mentally normal as usual. Bhattacharya deposed to the events as they happened. He gave his evidence in a clear and straightforward manner without any attempt at prevarication or exaggeration. He had no axe to grind. He stood to gain nothing. There is no reason why he should conspire with anyone against the caveatrix or bear false witness against her quae whom it was not even suggested that he has or had any animus.

7. Mr. Dalpatrai next urged that there were suspicious circumstances surrounding the execution of the Will and that the petitioner not having himself chosen to give evidence, an adverse inference must be drawn against him. The "suspicious" circumstances enumerated by Mr. Dalpatrai are (i) the draft Will was not produced; (ii) the deceaseds earlier Wills were not produced though referred to in the Will sought to be propounded; (iii) there was no reason why the deceased should have asked Kanayalal to write our the Will when the deceased himself had a "beautiful" hand writing; (iv) there was no necessity for asking Kanayalal to make a fair copy when the deceased himself had made a draft; (v) though inspection of the Will was asked for in 1975, it was not given till 1976; (vi) no provision has been made by the deceased for the caveatrix in the Will nor is there a reference to the caveatrix in the Will though reference has been made to the two married daughters; and (vii) there was a smudge on the deceaseds signature so as to prevent its identification.

8. Mr. Dalpatrai relied on (Surendrapal v. Dr. (Mrs.) Saraswati Arora)1, A.I.R. 1974 Supreme Court, 1999 followed in (Totaram v. Ramabai)2, A.I.R. 1976 Bombay 315, where it was held that if there are suspicious circumstances the onus is on the propounder to explain them to the satisfaction of the Court before it accepts the Will as genuine. Mr. Dalpatrai also relied on the decision in (Gurbaksh Singh v. Gurdial Singh)3, 29 Bom.L.R. 1392, where it was held that it was the bounden duty of a party, personally knowing the whole circumstances of the case, to give evidence on his own behalf and to submit to cross-examination and that his non-appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case. Mr. Dalpatrai also relied on the decision in (Gopal Krishna v. Mohammed Haji)4, 71 Bom.L.R. 48, where it was held that an adverse inference may be drawn if a party withholds an important document in his possession which can throw light on the facts at issue.

9. In the present matter the ratio of none of the decisions relied on by Mr. Dalpatrai will be applicable as none of the circumstances enumerated by Mr. Dalpatrai are suspicious, I shall deal with them in the same order as listed in the previous paragraph. (i) In the light of Bhattacharyas evidence, the necessity for producing the draft Will became redundant. (ii) Merely because the deceased stated in his Will that he revoked his previous Wills was no ground for producing his earlier Wills. Such a clause for abundant caution, is invariably inserted to emphasise that the latest Will executed is indeed the last Will and Testament of the testator. (iii) and (iv) There was nothing suspicious in the deceased asking Kanayalal to prepare a fair copy from the draft made by the deceased. To Mr. Dalpatrais question in cross-examination whether the deceaseds handwriting was "beautiful", Bhattacharya replied that the deceaseds handwriting was legible and so also was Kanayalals. (v) The 10-months time taken for giving inspection of the Will to the caveatrix, if read in conjunction with the evidence of Bhattacharya can avail the caveatrix nothing. (vi) No testator is bound to make reference to or provision for each and every child of his, if he makes his Will in a sound and disposing state of mind, memory and understanding. The caveatrix can hardly make it a grievance that no provision was made for her in the Will, for the simple reason that the sole beneficiary is the deceaseds widow and no one else. (vii) It is a mistake to attribute a nefarious motive from the smudge on a part of the signature. Despite the smudge, the signature is legible. While Bhattacharya frankly stated that when the deceased put his signature on the Will, the smudge was not there. Bhattacharya has despite the smudge, positively identified the signature on the Will as that of the deceased, which was put by the deceased in Bhattacharyas presence that day. There is nothing beyond the bare word of the caveatrix that the signature on the Will is not of the deceased. It is not without its own significance that despite the fact that on her own showing she has with her a specimen of the deceaseds handwriting and signature in the form of a letter and which the caveatrix asserted she would produce the following day, she did nothing of the kind. On her own admission she has not even cared to compare the two signatures. By reason of the non-production by her of the specimen handwriting and signature of the deceased, an adverse inference must be drawn against the caveatrix inasmuch as had she produced the same, it would not have substantiated her version of the signature on the Will not being of the deceased.

10. There is also no merit in Mr. Dalpatrais grievance that an adverse inference should be drawn against the petitioner by reason of his failure to give evidence though the petition is verified by him. It is well-settled that all that the person propounding a Will is required to do is to establish its due execution and attestation and that the testator was in a sound and disposing state of mind, memory and understanding. That burden the petitioner has discharged by leading the evidence of the attesting witness Bhattacharya. Indisputably the burden of establishing that the testator was otherwise, or that the Will is a forgery is on the person so asserting. It is only on such burden being discharged, would the propounder be required to lead evidence in rebuttal. In the present matter that burden has not been discharged by the caveatrix.

11. There is also no merit in Mr. Dalpatrais grievance that an adverse inference should be drawn against the petitioner as the writer of the Will, namely Kanayalal, was not called as a witness. To do so was unnecessary, for despite her needless prevarications in evidence, the caveatrix admitted what she has already done in her affidavit in-support of the caveat, that the Will is in the handwriting of Kanayalal. So also is there no merit in Mr. Dalpatrais contention that the relations between the deceased and Kanayalal were not good. This is negatived by the assertion of the caveatrix herself to the contrary in her evidence.

12. If I have not alluded to the caveatrixs evidence other than to what I have, it is because, in the words of Mr. Dalpatrai himself, it is irresponsible. That perhaps is putting it kindly.

13. Coming to the aspect of limitation, Mr. Dalpatrai urged that by virtue of the residuary Article 137 of the Limitation Act, the petition is barred by limitation as it was not filed within 3 years from the date of the deceaseds death on 3rd January, 1974 which according to Mr. Dalpatrai was the starting point when the petitioners right to apply accrued.

14. This contention is fallacious. The Schedule to the Limitation Act is divided into three Divisions. The Third Division pertains to applications and consists of two parts, the first part being "APPLICATION IN SPECIFIED CASES" and the second part being "OTHER APPLICATIONS" under which Article 137 falls. It reads thus:---

"137. Any other application Three years. When the

for which no period right to

of limitation is apply

provided elsewhere in accrues."

this Division.

The basic question that arises is whether the 3-year period must be computed from the date of deceaseds death as urged by Mr. Dalpatrai. Under the Limitation Act, no period is advisedly prescribed within which a petition for probate or letters of administration or succession certificate must be made after the deceaseds death. There is no warrant for the assumption that the right to apply envisaged in Article 137 necessarily accrues on the date of the death of the deceased. Such an application is to seek the Courts imprimatur to perform a duty created by a Will or for recognition as a testamentary trustee. The right to apply is a continuous right which is capable of being exercised as long as the object of the trust exists or any part of the trust, if created, remains to be executed, (Gananamuthu Upadeshi v. Vana Koilpillai Nadan)5, I.L.R. 17 Madras 379, 381. Being a continuous right, it can be exercised at any time after the death of the deceased, as long as the right to do so exists. The right to apply may, therefore, accrue not necessarily within 3 years from the date of the deceaseds death but when it becomes necessary to apply, which may be any time after the death of the deceased, be it after several years of course it need hardly be emphasised that delay in making the application must rightly give cause for suspicion and greater the delay the stronger would be the suspicion. The petitioner must-explain the delay, as for instance in (Kalidas Chuckerbutty v. Ishan Chunder Chuckerbutty)6, (1904)9 C.W.N. 49 (P.C.), where the delay was explained by the fact that there was no very urgent necessity for taking out probate, the estate itself being of trifling value. For that matter, provision for explaining delay in making the application beyond 3 years of the deceaseds death is to be found in Rule 382 of the High Court Rules. The 3-year period is presumably on the assumption that the necessity to make the application would ordinarily arise within that time. If the necessity arises thereafter, delay must, as stated earlier, be explained to the satisfaction of the Court. Delay cannot be equated with the absolute bar of limitation. Once execution and attestation of the Will are proved, the suspicion of delay in making the application no longer operates. (Maindra v. Mahalaxmi Bank)7, A.I.R. 1945 Privy Council 105. In para 10 of the petition the petitioner has explained that the cause of the delay was the filing of the partition suit by the caveatrixs which is still pending. The only reply in the caveatrixs affidavit is a bare averment that this cannot be a ground for condonation. It is obvious that the petitioner did not find it necessary to exercise the continuous right vested in him by law to make the present application until the caveatrix filed her suit on 18th January 1977.

15. Reliance was placed by Mr. Dalpatrai on the observations in (Kerala State Electricity Board v. T. P. Kunhaliumma)8, A.I.R. 1977 Supreme Court 282 (which was a case under section 16(3) of the Telegraph Act claiming enhanced compensation), that the words "any other application" in Article 137 would be a petition or any application under any Act. Those observations must be read in the light of the facts in that case, which have nothing to do with the exercise of a continuous right of an executor seeking the Courts permission to perform the duties cast on him by the Will.

16. Rejecting Mr. Dalpatrais contention, I summarise my conclusions thus:---

(a) under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made;

(b) the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted;

(c) such an application is for the Courts permission to perform a legal duty created by a Will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed;

(d) the right to the apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceaseds death;

(e) delay beyond 3 years after the deceaseds death would arouse suspicion and greater the delay, greater would be the suspicion;

(f) such delay must be explained, but cannot be equated with the absolute bar of limitation; and

(g) once execution and attestation are proved, suspicion of delay no longer operates.

17. I answer the issued as under :---

Issue No. 1 : In the negative.

Issue No. 2 : In the affirmative.

Issues Nos. 3 and 4 : In the negative.

18 In the result, Letters of Administration with the Will annexed shall issue as prayed. Costs of the petition shall come out of the estate. Caveat dismissed with no order as to costs.