# Shanti Swaroop & Ors v. Onkar Prasad Deceased & Ors

- **Citation:** (2023) 5 ILRA 1767
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-25
- **Case number:** Second Appeal No. 795 of 2011
- **Bench:** Salil Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shanti-swaroop-ors-v-onkar-prasad-deceased-ors-50259
- **Pages:** 16

## Headnote

Civil Law- The Limitation Act,1963-Article
59& 113- Article 59 of the Limitation Act is
not applicable in cases of testamentary
disposition and it is Article 113 which is
applicable in such cases.
(Para 26)

Original Suit was filed within three years
of the death of the testator. The Will of
testator excluded the plaintiff and the
cause of action to institute a suit for
cancellation of Will did not accrue in
favour of plaintiff till the death of the
testator-The rights of the plaintiff in the
suit property were for the first time
invaded by the defendants when they got
their name mutated in the revenue
records on the basis of the Will of the
testator- If the plaintiff appellant had
instituted a suit for cancellation of Will
during the lifetime of the testator himself,
a document which could have been
revoked by Brij Lal, the said suit would
have been a ridiculous- It is unfortunate
that the trial court and the lower appellate
court have non-suited the plaintiff for not
having filed a ridiculous suit. (Para 29 &
35)

The judgments and decrees of the courts
below are contrary to law and liable to be
set-aside. (E-15)

List of Cases cited:

## Text

_Characters 0–39,852 of 54,277. This is a partial read: ask again with offset=39852 for what follows._

5 All. Shanti Swaroop & Ors. Vs. Onkar Prasad Deceased & Ors.
1767
petitions, forming part of the bunch, are set
aside.
The
respondent
University
is
directed
to
reinstate
the
petitioners
forthwith. Considering the fact that they
have been working for the last 6 to 7 years
and the orders of termination have been
held to be illegal and arbitrary, they are
entitled to
all
consequential benefits
including the back wages from the date of
termination of their services.
----------
(2023) 5 ILRA 1767
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.04.2023

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.

Second Appeal No. 795 of 2011

Shanti Swaroop & Ors. ...Appellants
Versus
Onkar Prasad Deceased & Ors.
 ...Respondents

Counsel for the Appellants:
Sri Vinod Sinha, Sri Arun Kumar Sharma,
Sri Mahesh Sharma, Sri Pradeep Kumar Rai

Counsel for the Respondents:
Sri Sanjali Kr. Dubey, Sri Pramod Kumar
Dwivedi, Sri Sanjay Kumar Dubey

Civil Law- The Limitation Act,1963-Article
59& 113- Article 59 of the Limitation Act is
not applicable in cases of testamentary
disposition and it is Article 113 which is
applicable in such cases.
(Para 26)

Original Suit was filed within three years
of the death of the testator. The Will of
testator excluded the plaintiff and the
cause of action to institute a suit for
cancellation of Will did not accrue in
favour of plaintiff till the death of the
testator-The rights of the plaintiff in the
suit property were for the first time
invaded by the defendants when they got
their name mutated in the revenue
records on the basis of the Will of the
testator- If the plaintiff appellant had
instituted a suit for cancellation of Will
during the lifetime of the testator himself,
a document which could have been
revoked by Brij Lal, the said suit would
have been a ridiculous- It is unfortunate
that the trial court and the lower appellate
court have non-suited the plaintiff for not
having filed a ridiculous suit. (Para 29 &
35)

The judgments and decrees of the courts
below are contrary to law and liable to be
set-aside. (E-15)

List of Cases cited:

1.
Vundavalli
Ratna
Manikyam
&
anr.Vs
VSP.P.R.N. Prasada Rao 2020 (3) SCC 289

2. Janki Vashdeo Bhojwani & anr. Vs Indusind
Bank Ltd. & ors.(AIR 2005 SC 439)

3. Bondar Singh & ors.Vs Nihal Singh & ors.2003
(4) SCC 161

4. Shri D.M. Deshpande & ors.Vs Shri Janardhan
Kashinath Kadam 1998 (8) SC 39

5. Rajasthan St.TPT Corpn. & anr.Vs Bajrang Lal
(2014) AIR SCW 2058

6. Thakur Kishan Singh (dead) Vs Arvind Kumar
AIR (1995) Supreme Court 73

7. Mathai Samuel & ors.Vs Eapen Eapen (dead)
by Lrs. & ors.AIR (2013) SC 532

8. Hubert P. James Vs Gulam Hussain Pakseem
AIR (1949) Privy Council 151

9. Badri Vs Niadar and Umrao Kunwar &
anr.(1915)
XXXVII
ILR
422
(Allahabad
Series)

10. Mst. Bolo Vs Mst. Koklan AIR (1930) Privy
Council 270
1768 INDIAN LAW REPORTS ALLAHABAD SERIES
11.
Annamalai
Chettiar
VsA.M.K.C.T.
Muthukaruppan Chettiar AIR(1931) Privy Council
9

12. Mst. Rukhmabai Vs Lala Laxminarayan AIR
(1960) Supreme Court 335

13. Meda Bibi Vs Imaman Bibi & ors.1884 (6)
ILR 207 (Allahabad Series) (Full Bench)

14. Ibad Ali Vs Sajid Ali & ors.1895 ILR 23 P.C

15. Firoz & ors.Vs Sultan Surkhru AIR (1926)
Lahore 635

16. Raj Kumar Jain & ors.Vs Smt. Jagwati Devi
& ors.AIR (1980) Allahabad 225

17. Rambhajan Kunwar & ors.Vs Gurcharan
Kunwar reported in 1905 ILR 27 (Allahabad
Series) 14

(Delivered by Hon'ble Salil Kumar Rai, J.)

1. This is a plaintiff's second appeal
challenging the judgment and decree dated
20.11.1979 passed by the II- Additional
Munsif, Hathras, i.e., the Trial Court
dismissing Original Suit No. 13 of 1978 as
well as against the judgment and decree
dated 6.9.2011 passed by the District Judge,
Hathras, i.e., the lower appellate court
dismissing Civil Appeal No. 23 of 1980
filed against the decree of the trial court.

2. The facts relevant for the present
Second Appeal are that Brij Lal, who was
the common ancestor of the plaintiff and
the
defendants,
was
recorded
as
Bhumidhar of Plot No. 174-Aa (area 24-610) which shall hereinafter in short be
referred as ''the suit property'. Brij Lal had
four sons, namely, Nandan Lal, Babu Lal,
Shanti Swaroop (plaintiff) and Onkar
(defendant / respondent no.1). It is the
common case of the parties that Nandan
Lal
renounced
the
world
and
his
whereabouts were not known and Babu Lal
died issueless before Brij Lal. Omkar, i.e.,
defendant no. 1 had five sons, namely,
Kamlesh, Hridesh, Janki Prasad, Bhagwati
Prasad
and
Lalta
Prasad
who
are
respondent nos. 2 to 6 in the present appeal
and were defendant nos. 2 to 6 in the trial
court. The defendants claim that Brij Lal
executed a registered Will dated 05.08.1972
bequeathing
all
his
movable
and
immovable properties, including the suit
property, to defendants/respondent nos. 2
to 6. Hoti Lal Shrama and Shobha Ram
were the attesting witnesses of the
aforesaid Will. Brij Lal died on 05.11.1976.
After the death of Brij Lal, the defendant
nos. 2 to 6 got their names mutated in the
revenue records on the basis of the Will
dated 05.11.1976. The plaintiff instituted
Original Suit No. 13 of 1978 praying for
cancellation of Will dated 05.08.1972
pleading that the Will was a forged
document and thus void. Alternatively, the
plaintiff also pleaded that the suit property
was ancestral property and had devolved on
Brij Lal from his father and, therefore, under
the U.P. Tenancy Act, 1939 the plaintiff and
defendant no. 1 were co-tenants of the suit
property along with Brij Lal and remained
co-tenants
under
the
U.P.
Zamindari
Abolition and Land Reforms Act, 1950 and,
therefore, the plaintiff had 1/3 share in the
suit property and the Will regarding his 1/3
share in the suit property was void. The case
of the plaintiff is that he came to know about
the Will from the Gram Pradhan of the
village only six months before the institution
of the suit and the suit was within limitation
as the cause of action for filing the suit arose
when the plaintiff came to know about the
Will i.e., six months before the date of filing
the suit. The suit was registered in the trial
court on 04.01.1978.

3. The defendants filed their written
statement denying the averments made in
5 All. Shanti Swaroop & Ors. Vs. Onkar Prasad Deceased & Ors.
1769
the plaint and stated that the Will was
executed by Brij Lal out of his free will and
volition and that Brij Lal was the sole
tenant of the suit property. In their written
statement, the defendants admitted that
Brij Lal had died on 05.11.1976 but denied
the averments made regarding the date on
which the cause of action for filing the suit
arose and stated that the plaintiff knew
about the execution of the Will even before
the death of Brij Lal. On the aforesaid
pleadings, the defendants pleaded that the
suit was liable to be dismissed on merits as
well as on the ground that it was barred by
limitation.

4. The issues framed by the trial court
and relevant for the present second appeal
are as to whether the Will was a forged
document and was not executed by Brij
Lal, whether Brij Lal was the sole tenant of
the suit property and had the right to
execute the Will dated 05.08.1972 and the
relief to which the plaintiffs were entitled?
It is relevant to note that no issue regarding
limitation was framed by the trial court in
Original Suit No. 13 of 1978.

5. The trial court vide its judgment and
decree dated 20.11.1979 dismissed Original
Suit No. 13 of 1978. The trial court after
holding that Brij Lal was the sole tenant of
the suit property and after considering the
testimony of Shobha Ram, the attesting
witness of the Will and the fact that the
Will was a registered document, held that
the plaintiff had failed to prove that the
Will was a forged document. The trial court
held that the plaintiff knew about the
execution of the Will from before the date
stated by the plaintiff in his plaint and as
the suit was not filed within three years
from the date the plaintiff came to know
about the Will, the suit was barred by
Article 59 of the Limitation Act, 1963.
Consequently, the trial court held that the
plaintiff was not entitled to any relief.

6. Aggrieved, the plaintiff filed Civil
Appeal No. 23 of 1980 which was allowed
by the lower appellate court vide its
judgment and decree dated 21.09.1983. The
lower appellate court held that the plaintiff
had 1/3 share in the suit property as he was
a co-tenant of the same along with Brij Lal
and defendant no. 1. In its judgment dated
21.09.1983, the lower appellate court after
noticing the fact that the original Will had
not been filed in the trial court till the date
Shobha Ram, the attesting witness, testified
to the execution of the Will, held that the
testimony of Shobha Ram cannot be
considered to decide the issue regarding the
due execution of the Will and, therefore,
the due execution of the Will dated
05.08.1972 was not proved. Consequently,
the lower appellate court allowed Civil
Appeal No. 23 of 1980, set-aside the
judgment and decree of the trial court,
decreed Original Suit No. 13 of 1978 and
cancelled the Will dated 05.08.1972.

7. Aggrieved by the judgment and
decree passed by the lower appellate court,
the defendants filed Second Appeal No.
2281 of 1983 under Section 100 of the
Code of Civil Procedure which was
dismissed by this Court vide its judgment
and order dated 06.02.2006.

8. At this stage, it would be relevant to
note that the findings of the trial court that
the suit was barred by Article 59 of the
Limitation
Act
was
not
specifically
reversed either by the lower appellate court
or by this Court in Second Appeal No. 2281
of 1983.

9. Aggrieved by the judgment and
order dated 06.02.2006 passed by this
1770 INDIAN LAW REPORTS ALLAHABAD SERIES
Court dismissing Second Appeal No. 2281
of 1983, the defendants filed Special
Leave Petition (Civil) No. 10058 of 2006
before the Supreme Court which was
subsequently registered as Civil Appeal No.
2815 of 2008. The aforesaid civil appeal
was allowed by the Supreme Court vide its
judgment and order dated 16.04.2008 and
the case was remanded back to the first
appellate court to pass orders on the issue
as to whether Original Suit No. 13 of 1978
was barred by time. In its order dated
16.04.2008, the Supreme Court held that
because the trial court had dismissed the
suit also on grounds of limitation and the
said findings had not been reversed by the
first and the second appellate court,
therefore, the suit continued to remain
time-barred. In its order dated 16.4.2008,
the Supreme Court further directed that if
the question of limitation was decided in
favour of plaintiff, the other findings
recorded by the lower appellate court in its
judgment dated 21.09.1983 shall stand and
shall not be disturbed. The relevant portion
of the order dated 16.4.2008 passed by the
Supreme Court is reproduced below : -

"22. The reasoning behind the
said proposition is that certain questions
relating to the jurisdiction of a Court,
including limitation, goes to the very root
of the Court's jurisdiction to entertain and
decide a matter, as otherwise, the decision
rendered without jurisdiction will be a
nullity. However, we are not required to
elaborate
on
the
said
proposition,
inasmuch as, in the instant case such a plea
had been raised and decided by the Trial
Court but was not reversed by the First
Appellate Court or the High Court while
reversing the decision of the Trial Court on
the issues framed in the suit. We, therefore,
have no hesitation in setting aside the
judgment and decree of the High Court and
to remand the suit to the First Appellate
Court to decide the limited question as to
whether the suit was barred by limitation
as found by the Trial Court. Needless to
say, if the suit is found to be so barred, the
appeal is to be dismissed. If the suit is not
found to be time-barred, the decision of
the First Appellate Court on the other
issues shall not be disturbed."

(Emphasis added)

10. After remand by the Supreme
Court, Civil Appeal No. 23 of 1980 was
restored to its original number before the
lower appellate court and the lower
appellate court vide its judgment and order
dated 06.09.2011 dismissed Civil Appeal
No. 23 of 1980 holding that Original Suit
No. 13 of 1978 was barred by time. The
lower appellate court, relying on the
testimony of defendant no. 1, rejected the
plea of the plaintiff that he came to know
about the Will six months before the
institution of the suit and held that the
plaintiff came to know about the Will 3 to 4
days after its execution when the testator,
i.e., Brij Lal told him about the Will and as
the suit was filed three years after the
plaintiff came to know about the Will, the
suit was barred by limitation.

11. Hence, the present second appeal.

12. The appeal was heard as fresh case
on 26.09.2011 on which date this Court
observed that the only question involved in
the present appeal was as to from which
date the limitation for filing the suit would
run, i.e., whether from the date of the
execution of the Will or the date of the
knowledge of the Will or the date of the
death of the executant. However, the appeal
was not admitted for hearing on the
aforesaid date. On 21.11.2022, this Court
observed that ends of justice would be
5 All. Shanti Swaroop & Ors. Vs. Onkar Prasad Deceased & Ors.
1771
served if the appeal was decided finally at
the admission stage itself by framing
substantial question of law on the next date
fixed. On 21.02.2023, when the appeal was
called out for hearing, this Court observed
that the substantial question involved in the
present appeal was evident from the
observations of the Court in its order dated
26.09.2011 and with the consent of the
counsel for the parties, proceeded to frame
the substantial question on 21.02.2023 and
heard the appeal on the substantial question
of law on the same date. The appeal was
admitted on 21.2.2023 itself and the
following substantial question of law was
framed :-

"Whether Original Suit No. 13 of
1978 for cancellation of Will dated
05.08.1972 was barred by limitation in
light of Article 59 of the Limitation Act,
1963?"

13. The parties had notice of the
substantial question of law on which the
appeal was to be argued and the case was
heard on the aforesaid substantial question
of law on the same date.

14. It was argued by the counsel for
the appellant that by virtue of Article 113 of
the Limitation Act, 1963, the limitation to
file a suit for cancellation of Will starts to
run from the date on which the right to sue
accrues and the right to sue for cancellation
of Will will accrue only on the death of the
testator. It was argued that Article 59 of the
Limitation Act does not apply on suits for
cancellation of Will and the courts below
have wrongly held the suit to be barred by
limitation because of Article 59 of the
Limitation Act, 1963. It was argued that
admittedly Brij Lal died on 5.11.1976 and
the suit was filed within three years from
the date of death of the testator, therefore,
the suit was within limitation. In support of
his contention, the counsel for the appellant
has relied on the judgment of the Supreme
Court
reported
in
Vundavalli
Ratna
Manikyam
and
Anr.
vs.
V.P.P.R.N.
Prasada Rao 2020 (3) SCC 289.

15. Rebutting the argument of the
counsel for the appellant, the counsel for
the respondents / defendants has argued
that the Will was a registered document
and, therefore, by virtue of Section 47 of
the Registration Act, 1908 it would operate
from the date of its execution, i.e.,
05.08.1972. It was argued that from the
evidence on record, it was apparent that the
plaintiff came to know of the Will
immediately after its execution. It was
argued that by virtue of Article 59 of the
Limitation
Act,
1963,
the
suit
for
cancellation of Will had to be filed within
three years from the date when the facts
entitling the plaintiff to have the Will
cancelled first became known to him and as
the suit was filed after three years from the
date the plaintiff came to know about the
Will, the suit was beyond time and was
rightly dismissed as barred by limitation. It
was further argued that in his plaint
instituting Original Suit No. 13 of 1978, the
plaintiff had pleaded that the cause of
action for filing the suit arose six months
before the filing of the suit, i.e., on the date
when he came to know about the execution
of the Will from the Gram Pradhan of the
village and, therefore, in the present case,
the plaintiff - appellant cannot plead any
other ground to argue that the suit was not
barred by limitation and the cause of action
for filing the suit accrued on the death of
the testator. It was argued that for the
aforesaid reasons, the substantial question
of law has to be answered in favour of the
defendants and against the plaintiff. In
support of his contention, the counsel for
1772 INDIAN LAW REPORTS ALLAHABAD SERIES
the defendants - respondents has relied on
the judgments of the Supreme Court in
Janki Vashdeo Bhojwani & Anr. vs.
Indusind Bank Ltd. & Ors. (AIR 2005 SC
439); Bondar Singh & Ors. vs. Nihal
Singh & Ors. 2003 (4) SCC 161; Shri
D.M.
Deshpande
&
Ors.
vs.
Shri
Janardhan Kashinath Kadam 1998 (8) SC
39; Rajasthan State TPT Corpn. and Anr.
vs. Bajrang Lal (2014) AIR SCW 2058
and Thakur Kishan Singh (dead) vs.
Arvind Kumar AIR (1995) Supreme Court
73.

16. I have considered the submission
of the counsel for the parties and also
perused the lower court records.

17. The Will was executed by Brij Lal
on 05.08.1972 and the records indicate that
the will was registered on 08.08.1972. Brij
Lal died on 05.11.1976. Original Suit No.
13 of 1978 filed for cancellation of the
aforesaid
Will
was
registered
on
04.01.1978.
The
aforesaid
facts
are
admitted between the parties. The plaintiff
in his plaint claimed that he came to know
about the Will six months before the
institution of suit. The said averment of the
plaintiff is denied by the defendants. The
courts below have also not accepted the
plea of the plaintiff regarding the date when
he came to know about the Will and the
first appellate court has held that the
plaintiff came to know about the Will four
to five days after its execution when Brij
Lal himself informed the plaintiff about the
Will. The said findings have been recorded
by the court below relying on the testimony
of defendant no. 1 and are findings of fact
based on evidence on record and there is no
perversity in the aforesaid findings. In view
of the aforesaid, I proceed to decide the
case on the findings of the lower appellate
court that plaintiff got knowledge of the
Will before the death of Brij Lal and
immediately after its execution when Brij
Lal told him about the Will.

18. Section 2 (h) of the Indian
Succession Act, 1925 defines ''Will' as the
legal declaration of the intention of a
testator with respect to his property which
he desires to be carried into effect after his
death. It is apparent from the definition of a
Will that Will is merely a declaration of the
intention of the testator. The desire of the
testator in respect of his property comes
into effect after his death. Will by its very
nature is revocable and can be revoked by
the testator any time before his death. The
Will does not affect the properties included
in the Will during the life time of the
testator and no title in the properties passes
to the beneficiaries of the Will during the
life time of the testator. In other words, the
distribution of property as specified in the
Will does not operate in praesenti but
comes in operation in future, on the death
of the testator.

19. In Mathai Samuel & Ors. vs.
Eapen Eapen (dead) by Lrs. & Ors. AIR
(2013) SC 532, the Supreme Court
observed that, ''the essential quality of a
testamentary disposition is ambulatoriness
of revocability during the executants'
lifetime and such a document is dependent
upon executants' death for its vigour and
effect. The aforesaid characteristics of a
testamentary disposition distinguishes it
from gift / settlement of property which is
transfer
of
existing
property
made
voluntarily and without consideration by
one person called the donor to another
called the donee and accepted by or on
behalf of the donee. It was observed by the
Supreme Court that in case of a Will, the
crucial circumstance is the existence of a
provision disposing of or distributing the
5 All. Shanti Swaroop & Ors. Vs. Onkar Prasad Deceased & Ors.
1773
property of the testator to take effect on his
death, while on the other hand, in case of
gift, the provision becomes operative
immediately and a transfer in praesenti is
intended and comes into effect. It was
further observed that in case of Will, no
interest is intended to pass during the
lifetime of the owner of the property and
mere registration of Will will not render
the document a settlement. In other words,
a mere registration of Will will not make
the disposition of property as stipulated in
the Will to come into effect in praesenti,
i.e., immediately on the execution of the
Will and during the lifetime of the testator.

20. Previously, in Hubert P. James vs.
Gulam Hussain Pakseem AIR (1949)
Privy Council 151, the Privy Council
observed that Will had no legal effect
whatsoever during the lifetime of the
testator and no legal right can be supported
on the Will of a living person. The
observations of the Privy Council in
paragraph nos. 15 and 16 of the judgment
in Hubert P. James (supra) are reproduced
below : -

"15. It is strange that none of the
three Judges who dealt with this case in
India, and none of the counsel engaged on
behalf of the appellant, nor the counsel
who signed the appellant's case before the
Board seem to have considered that the
Court was doing anything unusual in
acting upon the will of a living person, a
will, too, which had been revoked before
the commencement of the suit. The
document was throughout referred to as a
will and apparently regarded as entitled to
the
same
degree
of
solemnity
and
importance as would have attached to it
had it been in truth a will, that is the will of
a deceased person. A will takes effect on
the death of the executant and during his
lifetime is an ambulatory document,
revocable at any moment, having no legal
effect whatsoever. It is a secret and
confidential document which the executant
is never ordered to produce. In India, where
a will may be deposited with the Registrar
under the Indian Registration Act, the
terms of the Act ensure that the contents
remain secret until the death of the
executant.

16. Apart from this case their
Lordships know of no case, and the
industry of counsel has produced none, in
which
any
Court
has
founded
or
supported a legal right on the will of a
living person. However the appellant, who
might have destroyed his will after revoking
it and have resisted, successfully their
Lordships think, any attempt to make him
disclose its contents, adopted neither of
these courses. He allowed the document to
be put in evidence without objection. In
these
circumstances,
their
Lordships,
without expressing any opinion upon the
wider question whether the will of a living
person can ever be relevant to support a
legal claim, will deal with the argument of
the respondent on the assumption that the
admission contained in the document was
proved. The respondent argues that here is
a piece of paper containing, over the
signature of the appellant, an admission of
a fact, and such admission can be proved
and acted upon although the document in
which it is contained may not have the
legal effect which it was intended to have.
Assuming the admission to be proved, its
scope must be determined not only, as with
all written admissions, with reference to
the whole document in which it appears,
but also in the light of the fact that
document was not intended to take effect
until the death of the person making the
admission. The admission relied on in this
case is not specific as to the date or terms
1774 INDIAN LAW REPORTS ALLAHABAD SERIES
of the partnership, or the circumstances in
which it was entered into; it merely admits
that the relation of partnership had been
formed during the lifetime of the testator.
Their Lordships think that the admission
goes no further than to admit that on the
death of the appellant the respondent was
to be treated as his partner, and the estate
was to be distributed on that basis unless
the will was revoked. In their Lordships'
view there is no justification for treating
clause 4 of the will as admitting the
existence of a partnership effective before
the death of the testator with all the
consequences which would flow from such
a relationship. In their Lordships' view
therefore the will of the appellant has no
bearing upon his relationship with the
respondent."
(Emphasis added)

21. The Will of a living person does
not invade the rights of any person and
does not create any interest in favour of any
person in respect of the properties included
in the Will. Because the Will of a living
person has no legal effect, there is no
requirement to get the same cancelled
during the lifetime of the testator. The
right to impeach any instrument accrues
only when it becomes operative in law. In
Badri vs. Niadar and Umrao Kunwar &
Anr.
(1915)
XXXVII
ILR
422
(Allahabad Series) the issue was whether
a reversioner had the right to file a suit
for a declaration that the Will in question
was void and ineffectual as against his
interest on the mere execution of the
Will. The Division Bench of this Court
held that mere execution of the Will does
not afford a cause of action for a
declaratory suit on the part of nearest
reversioner that the Will was void and
ineffectual as against his interest. The
observations of the Division Bench of
this Court in Umrao Kunwar (supra) are
reproduced herein below:-

"1. This was a suit by a plaintiff
claiming to be the next reversioner under
the Hindu Law to the estate of one Dewa.
The said Dewa died leaving a widow,
Umrao Kuar. This lady has executed a
will bequeathing the property in her
hands as widow of Dewa to one Tika
Ram, son of Niadar, brother of the said
Dewa. In the will there is a recital to the
effect that the bequest is made in
accordance with oral directions given by
Dewa. The plaintiff sought a declaration
that the will in question is void and
ineffectual as against his interest, and
that Tika Ram, who was impleaded as
defendant No. 2, will acquire no rights
under the said will. The court of first
instance dismissed the suit upon a
preliminary point, holding that there had
been no alienation by Umrao Kuar of the
property in her hands, and that under the
circumstances the mere execution of a
will would not afford a sufficient reason
for granting a declaratory decree It
supported itself by a quotation from
Mulla's Principles of Hindu Law. The
learned District Judge on appeal has
reversed the finding on the preliminary
point and remanded the case for trial on
the merits. He bases his decision upon the
reported case of Jaipal Kunwar v. Indar
Bahadur Singh (1904) I.L.R. 26 All. 238. It
is obvious that in that case their Lordships
of the Privy Council maintained the
decision of the courts in India with
considerable reluctance, and carefully
guarded
themselves
against
being
understood to hold that the execution of a
will under such circumstances as the
present would afford a cause of action for a
declaratory suit on the part of the nearest
reversioner. It is certainly not the practice
5 All. Shanti Swaroop & Ors. Vs. Onkar Prasad Deceased & Ors.
1775
of this Court to encourage such suits, vide
Ram Bhajan and Ors. v. Gurcharan (1904)
1 A.L.J.R. 468. The learned District Judge
moreover, while purporting to follow the
Privy Council ruling quoted by him, has
really departed from the spirit of that ruling
by interfering with the decision of the court
of first instance. We think that the learned
Additional Subordinate Judge was right in
refusing to grant the declaration sought by
the plaintiff and gave good reason for his
decision. We set aside the order of the court
below and restore the decree of the court of
first instance dismissing the suit. The
defendants-appellants will get their costs
in this Court and in the lower appellate
court."
(Emphasis added)

22. It was observed by the Privy
Council in Mst. Bolo vs. Mst. Koklan AIR
(1930) Privy Council 270 that there can be
no right to sue until there is an accrual of
the right asserted in the suit and its
infringement
or
at
least
clear
or
unequivocal threat to infringe that right by
the defendant against whom the suit is
instituted. The said principle was followed
by the Privy Council in Annamalai
Chettiar vs. A.M.K.C.T. Muthukaruppan
Chettiar AIR (1931) Privy Council 9 and
subsequently by the Supreme Court in Mst.
Rukhmabai vs. Lala Laxminarayan AIR
(1960) Supreme Court 335. In Mst.
Rukhmabai (supra), the Supreme Court
after referring to the observations of the
Privy Council in Mst. Bolo (supra) and
while considering Article 120 of the
Limitation Act, which corresponds to
Article 113 of Limitation Act, 1963,
observed that the right to sue under Article
120 of the Limitation Act accrues when the
defendant has clearly and unequivocally
threatened to infringe the right asserted by
the plaintiff in the suit. It was further
observed that every threat by a party to
such a right, however, ineffective and
innocuous it may be, cannot be considered
to be clear and unequivocal threat so as to
compel him to file a suit. The Supreme
Court observed as to whether a particular
threat gives rise to a compulsory cause of
action depends upon the question whether
that
threat
effectively
invades
or
jeopardizes the said right.

23. The observations of the Supreme
Court in paragraph nos. 31, 32 and 33 in
Mst. Rukhmabai (supra) are reproduced
here in below:-

"31.
The
argument
on
the
question of limitation is put thus: The
plaintiff, respondent herein, had knowledge
of the fraudulent character of the trust deed
as early as 1917 or, at any rate, during the
pendency of the partition suit between
Rukhmabai and Chandanlal instituted in
the year 1929, and the suit filed in 1940,
admittedly after six years of the said
knowledge, would be barred under Art. 120
of the Limitation Act. Article 120 of the
Limitation Act reads :

Description
of suit
Period
of
limitation
Time
from
which
period
begins to run.

120.
Suit
for
which
no
period
of
Limitation
is provided
elsewhere
in
this
Schedule.
Six years
When the right
to sue accrues.

This Article was subject to
judicial scrutiny both by the Judicial
1776 INDIAN LAW REPORTS ALLAHABAD SERIES
Committee as well as by the High Courts of
various States. The leading decision on the
subject is that of the Judicial Committee in
Mt. Bolo v. Mt. Koklan, 57 Ind App 325 at
p. 331: (AIR 1930 PC 270 at p. 272).
Therein, Sir Benod Mitter observed:

"There can be no 'right to sue' until
there is an accrual of the right asserted in
the suit and its infringement, or at least a
clear and unequivocal threat to infringe
that right, by the defendant against whom
the suit is instituted."

32. The said principle was restated
and followed by the Judicial Committee in
Annamalai Chettiar v. Muthukaruppan
Chettiar, ILR 8 Rang 645: (AIR 1931 PC
9), and in Gobinda Narayan Singh v. Sham
Lal Singh, 58 Ind App 125: (AIR 1931 PC
89). The further question is, if there are
successive invasions or denials of a right,
when it can be held that a person's right
has
been
clearly
and
unequivocally
threatened so as to compel him to institute
a suit to establish that right. In Pothukutchi
Appa Rao v. Secy. of State, AIR 1938 Mad
193 at p. 198, a Division Bench of the
Madras High Court had to consider the
said question. In that case, Venkatasubba
Rao, J., after considering the relevant
decisions, expressed his view thus:

"There is nothing in law which says
that the moment a person's right is denied,
he is bound at his peril to bring a suit for
declaration.
The
Government
beyond
passing the order did nothing to disturb the
plaintiff's possession. It would be most
unreasonable
to
hold
that
a
bare
repudiation of a person's title, without
even an overt act, would make it
incumbent on him to bring a declaratory
suit."

He adds at p. 199:

"It is a more difficult question, what
is the extent of the injury or infringement
that gives rise to, what may be termed, a
compulsory cause of action?"

33. The legal position may be briefly
stated thus: The right to sue under Art. 120
of the Limitation Act accrues when the
defendant has clearly and unequivocally
threatened to infringe the right asserted by
the plaintiff in the suit. Every threat by a
party to such a right, however ineffective
and innocuous it may be, cannot be
considered to be a clear and unequivocal
threat so as to compel him to file a suit.
Whether a particular threat gives rise to a
compulsory cause of action depends upon
the question whether that threat effectively
invades or jeopardizes the said, right."

(Emphasis added)

24. In Meda Bibi vs. Imaman Bibi &
Ors. 1884 (6) ILR 207 (Allahabad Series)
(Full Bench), the issue before the Full
Bench of this Court was as to whether the
limitation for filing a suit for cancellation
of gift would start running from the date
the
gift
had
been
executed
though
possession had not been delivered by the
donor to the donee or the right to impinge
the gift would accrue after it became
operative in law, i.e., after possession of the
same was delivered to the donor. In Meda
Bibi (supra), the donor remained in
possession till his death and, therefore,
possession of the property was delivered to
the donee after the death of the donor. The
Full Bench held that before holding the suit
to be barred by limitation, it had to be seen
as to whether the alleged gift ever took
effect in law during the lifetime of the
donor so as to afford the plaintiff a
complete cause of action on which to come
into court. It was held by the Full Bench of
this Court that the right to challenge the gift
accrued in favour of the plaintiff only when
after receipt of possession by the donee, the
gift
became
operative
in
law.
The
5 All. Shanti Swaroop & Ors. Vs. Onkar Prasad Deceased & Ors.
1777
observations of the Full Bench of this Court
are reproduced below:-

"It appears to us that the Judge has
allowed the plea of limitation without first
sufficiently ascertaining the facts material to
its determination.

It was essential for him, before holding
the suit barred, to find in terms whether the
alleged gift by Ghulam Ghaus ever took effect
in law during his lifetime, so as to afford the
plaintiff a complete cause of action on which
to come into Court. Her case is that Ghulam
Ghaus remained in possession of the whole of
the property covered by that instrument until
his death, and that no possession of it, as
required by the Muhammadan Law to render
the transaction legal and binding, was ever
obtained by the donee as long as he remained
living. It does not necessarily follow that
because the alleged deed-of- gift was on a
particular date, that time at once began to run
against the plaintiff under art. 91 of the
Limitation Act. Her title to impeach it could
only accrue from the moment when, by
receipt of possession, it had become operative
in law. As in this view of the matter the Judge
has not only disposed of the suit on a
preliminary point, but determined that point
upon inadequate materials, we have no
alternative but to allow this appeal, and
remanding the case to him under s. 562 of the
Code, we direct him to restore it to his file of
pending appeals and dispose of it according to
law. The costs of the appeal to this Court will
be costs in the cause."
(Emphasis added)

25. As noted earlier, the Will of a
living person does not infringe the rights of
any person and does not create any legal
interest in favour of any person. Thus, no
right to sue for cancellation of the Will
accrues in any person during the lifetime of
the testator. Will can be challenged by a
person against whom the Will operates
after the death of the testator and in the said
case, the Will would be defended by the
beneficiaries of the Will who obviously
would be defendants in the suit. A
reading of the judgments of the Privy
Council and the Supreme Court shows
that the cause of action for instituting a
suit for cancellation of Will would not
arise before the death of the testator. The
cause of action for cancelling an
instrument would be complete only
when the instrument affects the rights
of the parties to possession or title. A
beneficiary of a Will can assert his
right in respect of the properties
included in the Will and on the basis of
the Will only after the death of the
testator and it is only then that the
beneficiary would either invade or
threaten to invade the right of the
plaintiff in respect of the properties
included in the Will.

26. Article 59 of the Limitation Act is
not applicable in cases of testamentary
disposition and it is Article 113 which is
applicable in such cases. Article 59 and 113
of Act of Limitation Act are reproduced
herein below:-
1778 INDIAN LAW REPORTS ALLAHABAD SERIES

27. The right to sue, as held earlier,
accrues in favour of plaintiff only after the
death of the testator and, therefore, Article
113 applies in cases of Will. The
knowledge of the execution of the Will
before the death of the testator is not
relevant to decide as to whether the suit for
cancellation of Will was instituted within
the limitation prescribed by the statute. At
this stage, it would be relevant to refer to
the observations of the Privy Council in
Ibad Ali vs. Sajid Ali & Ors. 1895 ILR 23
P.C. 1 in which it was observed that Article
91 of the Schedule 2 of the Limitation Act,
1877 which corresponds to Article 59 of the
present Limitation Act, 1963 did not have
any application in case of a Will. The
observations of the Privy Council in
paragraph 9 of the aforesaid judgment are
reproduced herein below:-

"9. Upon the hearing of this
appeal the appellants' counsel were, in the
opinion of their Lordships, well advised in
not pressing the plea in bar of action which
was suggested for the first time by the
District Judge. Article 91 of Schedule II of
the Limitation Act 1877 does not appear to
their Lordships to have any application to
the case of a Will. On the other hand, the
respondent did not open or insist on his
cross - appeal, which was brought for the
purpose of raising the question whether the
deceased
was
precluded
from
from
disposing of his estate by will, in prejudice
of his heir-at-law, either by Mahomedan
law or by Act I of 1869."
(Emphasis added)

28. The aforesaid observations of the
Privy Council were referred by the High
Court of Lahore in Firoz & Ors. vs. Sultan
Surkhru AIR (1926) Lahore 635 wherein
the High Court held that in case of
cancellation of Will, Article 120 of the
Limitation Act, 1887 was applicable which
corresponds to the present Article 113 of
the Limitation Act. The observations of the
Lahore High Court made in paragraph 7 of
the aforesaid judgment are reproduced
hereinbelow:-

"7. The question of limitation
remains. It is clearly laid down in Sajid v.
Ibdad (1986) 23 Cal 1 by their Lordships
of the Privy Council that Article 91 does
not govern a Will. It is true, as pointed by
counsel, that this was an obiter dictum in
the sense that the question was not
contested, but their Lordships say that the
plaintiff advisedly refrained from relying
on this article as it had no application to
the case of a Will.