Home | Legal Advice | Civil Law Cases | Limitation period for cancellation of probate

Limitation period for cancellation of probate

Shivendra Pratap Singh

Advocate

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

Reading Time:

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

Advocate

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

Can husband gift mother’s property to his second wife?

Question: Can husband gift mother’s property to his second wife? My husband married me after his divorce. He has a daughter from his first marriage and is living with her mom. I have also a daughter. My question is that if my husband gift me his mother's property to...

Can a Builder charge interest on Maintenance?

Question: Can a Builder charge interest on Maintenance, Maintenance security deposit, Prime lending charges (PLC), and Documentation charges? The property was already built and ready to move. But due to a delay in payment, I had not taken possession yet.  Although I...

Can the tehsildar issue a succession certificate?

Question: Whether Tehsildar is competent authority to issue succession certificate to collect life insurance policy. My father's insurance policy claim is matured and we are the legal heirs to collect that amount. Can the tehsildar issue a succession certificate?...

Recovery of money from elder brother

Question: My elder brother and two sons took a loan from me for agricultural land development and my brother gave surety for that amount. Later my brother's sons did not return money so went into court and in court my brother agreed that “he needed to pay money for my...

Buying property without home loan 

Question: I have booked a flat for Rs. 51000 in Badlapur, Maharashtra. The price of that 1 bhk is 28 lakhs. I am buying that property without a home loan. The builder said you will get possession till the end of July 2022. But the housing website is showing June 2023...

How to recover possession of my land?

Question: Buyer has illegally encroached on my grandfather's property. In this condition please suggest how to recover possession of my land? I am fighting for my grandfather's property. My Grandfather has agricultural land of about 17 acres. In 1988 my grandfather...

Cancellation of Sale Agreement

Question: Cancellation of sale agreement without consent of party. I executed an agreement of sale for a 497 sq.yards site with a condition that I will get clearance from ULC. I took advance of 2 lakhs cheque and 2 lakhs cash, totalling to 4 lakhs. It's been 22 months...

Landlord does not provide a rent receipt

Question: After making rent payment, the landlord does not provide a rent receipt. Also not picking up calls & responding to messages. What action can be taken against him? Asked from: Maharashtra You should send to him a legal notice on his residential or postal...

Kanoonirai has been advising in legal issues since October 2014. You can consult a lawyer through online media, telephonic consultation and video conferencing.

Contact

mail[at]kanoonirai.com
+91-91400-4[nine][six]54