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Limitation period for cancellation of probate

Shivendra Pratap Singh


21/07/2021/ 2:59:19 PM

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Question: I want to file a case for the cancellation of probate. The district court has granted the letter of administration in the course of probate proceedings. The executor of the will did not make me a party in the probate proceeding. Therefore, I could not have had information about the filing of such a proceeding in the district court. 

When a person files a civil suit for the permanent injunction thereupon, I get information about the probate. The aforesaid probate is false and frivolous. It has been taken by playing fraud on the part of the executor. Therefore, the judgement of granting the letter of administration is invalid. We are the owners of this property because our deceased uncle had granted us permission to make a residential flat on his property. The value of this property is very high because it is situated near the main city.

Therefore some builders and brokers are keeping their eye on this property. They have connived and made a clandestine deal with the executor in order to grab this valuable property. Can I file any civil suit for the cancellation of the probate? 

Question from Maharashtra

You cannot file any civil suit for the cancellation of probate because it is barred by the limitation. Section 276 of the Indian Succession Act provides detailed procedure for filing a probate petition. if there is no defect in the procedure to get probate you cannot claim its cancellation even within the limitation period.

Period of limitation for cancellation of probate

The Indian Succession Act however, does not provide any period of limitation for the cancellation of probate. But Article 137 of the Indian Limitation Act regulates the period of limitation in this case. According to Section article 137 of the Indian limitation act there is a three years limitation period for filing a civil suit for the cancellation of probate.

You said that the executor did not make you party in the probate proceeding. In the probate proceeding you are not the beneficiary of the will therefore, you are not a necessary party. The court does not decide the rights of the party in a probate proceeding. Instead of it the court recognises the executor through the letter of administrator to execute the intention of the testator as mentioned in the will. 

You were not parties in the proceeding. It does not give a ground for challenging the validity of probate. In Rukmini Devi versus Narendra Lal Gupta (1985) 1 SCC 144 the Supreme Court has held that if a party does not contest proceedings for grant of probate it cannot be permitted to question the validity of the probate by a collateral attack in different proceedings. The grant of probate is right in rem binds not only the person who are parties but also others who are not parties to the probate proceedings. 

If you have any right in the property which is a assailing by the executor, under the letter of administration or probate then you can challenge the probate. You can proceed under section 263 of Indian succession act for the cancellation of probate. No need to take a succession certificate from the district court under Section 372 of the Indian succession act

However there is a three years limitation period for filing a petition for the cancellation of probate. But you can take a plea for condonation of delay under Section 5 of the Indian limitation act. If the court finds that there is sufficient reason for not moving an appropriate petition within the prescribed time period then the court will admit your case and will cancel the probate.

shivendra pratap singh advocate

Shivendra Pratap Singh


Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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