• Succession, fabricated will, etc

The query is on the following facts:
1.	My father died intestate in 2006. We are two brothers and two sisters. One sister predeceased my father, and my other brother is mentally challenged ( bipolar most probably MD physician does not practice ) but not declared so under Mental Health Act. The predeceased daughter had two children. Hence my sister, me, and my mentally challenged brother would each have a 25% share and the two children of my deceased sister have 25% share in the property of my father. 

2.	I have another blood brother, X, who was adopted by the elder brother of my father and hence does not inherit any property from my father but inherits from the property of the elder brother of my father. However, he wants to inherit from my father’s property as he has lived in the same house as my father and was treated as a son and sibling by us. My father had made him the nominee in most of his movable properties as none of his other children were residing in the same city except the mentally challenged brother. 

3.	After the death of my father there were family parleys in which the sisters were willing to forgo their share for a nominal sum to be paid to them and a certain amount set aside for family functions like marriage and X would be given one third share along with other brothers. Secondly, whether the arrangement was to be given effect to by a fabricated will or a family arrangement. X did not want to give any money to the sisters and I did not want to be a party to a fabricated will.

4.	There was no agreement and hence the matter was in limbo. However, in 2013 that is 7 years after the death of my father X fabricated a will of my father and presented it for probate. This fact was discovered by me yesterday through a local lawyer.  Neither a copy of the available nor it is known as the will has been probated. However, no notice was received from the Court by any of the four class 1 inheritors of my father  who inherit 75% of his assets.
5.	 My mother predeceased my father by a year in June of 2005. She owned half of the land of the valuable house property. She died intestate.
6.	I had filed a suit for partition of the house property referred to above 20 days back before discovering about the forged will.

Queries:
a)	Does limitation of three years ( 137 of limitation Act) apply to having a will probated? Kunvarjeet Singh Khandpur vs Kirandeep Kaur & Ors  : CIVIL APPEAL NO 2464 of 2008, 2008(2 )SCCD744 (S.C.)
b)	If limitation applies, then under what circumstances can the court entertain the probate application? 
c)	If limitation applies, then is a mere application to the Court sufficient to deny probate and if so then is the will invalid and the estate treated as intestate? 
d)	Is it necessary for the Applicant/Court to issue notice to all the legal heirs or only to those legal heirs mentioned in the will? 
e)	Can the Applicant take the plea that he did not have the correct address of the legal heirs and hence notice was not served? (The Applicant has the phone no and email addresses) 
f)	When can one sue under 467/193 of the IPC? Can one also sue the witnesses of the will also under the 467 of the IPC. 
g)	Is there a period of limitation under section 263 of the Indian Succession Act for revocation of probate? 
h)	How is the succession to half of the land on which the building is erected, which belongs to my mother, is to be determined as she died intestate and probably her will has neither been fabricated nor probate applied for.
Asked 10 months ago in Civil Law from Bangalore, Karnataka
1) you should file for probate within period of 3 years .  application for grant of probate and letters of administration is covered by the Article 137 of the Limitation Act. Therefore, it has been held in the absence of specific provisions in the limitation Act prescribing the period for filing a petition for grant of probate, the case would fall under Article 137 of the Limitation Act and the cause of action for filing that application arises from the date the when right to apply for grant of probate arises.

2) delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay, greater would be the suspicion;

3) notice has to be issued to all the legal heirs mentioned by the applicant 

4) duty of applicant to disclose all legal heirs . notice will be served at address mentioned in the petition for probate

5) applicant has to find the address of the legal heirs for service of notice 

6) in respect of your mother if she died intestate you have to apply for letters of administration 

7) article 137 of limitation act applies for revocation of grant of probate.  It provides for any other application for which no period of limitation is provided elsewhere in the decision. Three years is the time from the date when the right to apply accrues. 
Ajay Sethi
Advocate, Mumbai
23142 Answers
1215 Consultations
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1) you have to file your reply after issue of notice objecting to grant  of probate would be converted into testamentary suit . 

2) as mentioned earlier delay in making application for probate has to explained .it is suspicious circumstances  surrounding the will 

3) it has to be proved that will was executed by the testator in presence of 2 witnesses 

4) if will is forged and fabricated file police complaint of fabrication of documents , forgery against your brother 
Ajay Sethi
Advocate, Mumbai
23142 Answers
1215 Consultations
5.0 on 5.0
My father had made him the nominee in most of his movable properties as none of his other children were residing in the same city except the mentally challenged brother. 

What do you mean by nominated to movable properties. You mean to refer to the fixed deposits or any other cash assets?, if so, he can receive the same on behalf of actual legal heirs and disburse them to the legal heirs of your deceased father equally.  He is not entitled to any share in it though he is a nominee of such movable assets as per law because he is not a legal heir to your father because he has already bee given in adoption legally to some other person.




whether the arrangement was to be given effect to by a fabricated will or a family arrangement. X did not want to give any money to the sisters and I did not want to be a party to a fabricated will.
The very name fabricated will is illegal and invalid before the eyes of law, so any attempt or an act made on this concept, if unearthed at a later stage may attract the provisions of both civil and criminal laws for suitable action thereon.



This fact was discovered by me yesterday through a local lawyer.  Neither a copy of the available nor it is known as the will has been probated. However, no notice was received from the Court by any of the four class 1 inheritors of my father  who inherit 75% of his assets.
You can ascertain the case details with the help of the same local lawyer, if the case has been decided as exparte, you may arrange to set aside the decree and contest it on the grounds of false and forged documents to hold them as invalid and illegal. 





T Kalaiselvan
Advocate, Vellore
13944 Answers
127 Consultations
5.0 on 5.0
a)	Does limitation of three years ( 137 of limitation Act) apply to having a will probated? Kunvarjeet Singh Khandpur vs Kirandeep Kaur & Ors  : CIVIL APPEAL NO 2464 of 2008, 2008(2 )SCCD744 (S.C.)
The three years limitation period will start from the date of discovery of facts.



b)	If limitation applies, then under what circumstances can the court entertain the probate application? 
If he can manage to forge and fabricate a will, he can manage to play fraud on court with the help of some corrupted staff of the court or through some unbecoming lawyers.





c)	If limitation applies, then is a mere application to the Court sufficient to deny probate and if so then is the will invalid and the estate treated as intestate? 
Setting aside the exparte order on grant of probate is a different subject to that of dealing with property upon intestate death of the owner.   You must do both the things as is required by law and not on any presumptions.



d)	Is it necessary for the Applicant/Court to issue notice to all the legal heirs or only to those legal heirs mentioned in the will? 
Yes, it is required by law for the court to hear all the parties to the case before passing any order/judgment in the case before it, whether in this case or any case before it.  You are entitled to be given notice and heard by court before court decides on the probate case. 




)	Can the Applicant take the plea that he did not have the correct address of the legal heirs and hence notice was not served? (The Applicant has the phone no and email addresses) 
If a person decides to play fraud on the basic issue itself, to maintain it he may go to any extent to play fraud on all other ancillary issues too.  So he can very well state so, therefore on becoming aware of such a case you may immediately approach court and file an application to participate in the proceedings or else you may stand to lose your rights and entitlement. 



f)	When can one sue under 467/193 of the IPC? Can one also sue the witnesses of the will also under the 467 of the IPC. 
Not necessary.


g)	Is there a period of limitation under section 263 of the Indian Succession Act for revocation of probate? 
What do you mean by revocation of probate.  If the probate is granted, if the decree was exparte, it should be set aside by filing petition under the provisions of law, if it was a contested decree, then an appeal should be preferred before the appellate court.  The delay should be sought to be condoned by filing a separate petition under section 5 of limitation act. 


h)	How is the succession to half of the land on which the building is erected, which belongs to my mother, is to be determined as she died intestate and probably her will has neither been fabricated nor probate applied for.
If there is valid bequest and the partition has been arranged in it, you may proceed as per that or else, by a partition deed drawn amicably all such conditions may be discussed and reduced to writing which can be registered after conclusion. 
T Kalaiselvan
Advocate, Vellore
13944 Answers
127 Consultations
5.0 on 5.0
1. There is no limitation to applying for probate of the will. If the probate has been granted then the remedy is to apply for its revocation. If the probate petition is still pending then apply to the court to plead yourself as a party to the petition.

2. The summons are to be issued to only those heirs who are mentioned in the will. Other legal heirs, if any, can apply to the court to include them as a party,

3. It is the prerogative of the applicant to include or exclude the heirs who are not mentioned in the will. However, it is not a sustainable plea that he did not have the correct address of the heirs who are to be made a party. The heirs can be made as a party with their last known address. The probate is liable to be set aside on this ground itself.

4. If the will has been forged then a prosecution under 467/420 IPC can be launched. The witnesses to the will are not immune from the prosecution if it can be proved that they were participants in the commission of offence.

5. There is no limitation for the revocation of probate.

6. The criminal prosecution can be launched and taken to a logical conclusion regardless of the revocation of probate.
Ashish Davessar
Advocate, Jaipur
18061 Answers
446 Consultations
5.0 on 5.0
a. Yes, the instant application is covered u/s 137 of limitation Act as per the citation forwarded by you,

b. & c.  Some one has to contest the probate application on the ground of maintainability,

d. Notice shall have to be sent to all the legal heirs of the property willed. Since the Court will not know who are the legal heirs, it sends notices to all the legal heirs as mentioned in the application for probate. The legal heirs who has not get notice, should join the case as an intervening party,

e. In that case he/she is required to send the notices to their last known address and get the said notice published in News Papers,

f. Yes, she along with her associates can be sued u/s467/193 of IPC,

g. Said limitation is not specified. In case of inordinate delay, cause for the delay can be attributed to not being aware of the defect or fraud committed while availing the probate,

h. Will can be executed on the property owned by the executor as otherwise the said will shall be unenforceable and no probate on the same will be granted.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
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1. Yes, in that case the Court will either condone the delay or reject the application,

2. Police complaint shall have to be lodged or criminal case shall have to be filed against the beneficiary of the will  i.e. the applicant of the probate application  for criminally prosecuting him.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
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nominee does create any right to inheritance. Nominee is like a trustee who is bound to transfer the property to the legal heir. if family settlement is clearly made and registered it had binding effect otherwise it may be annulled afterward. family arrangement not deemed to be a WILL. will must be in writing and signed & attested by two witness.  its registration is not necessary u/s 17 registration act. Probate cannot be granted on oral or tantamount WILL.
Shivendra Pratap Singh
Advocate, Lucknow
2728 Answers
41 Consultations
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Limitation can be extended u/s 5 limitation act. when a writing/document/ratification etc came in knowledge a new limitation starts under limitation act. limitation period may be enlarged by the court. 
Shivendra Pratap Singh
Advocate, Lucknow
2728 Answers
41 Consultations
4.9 on 5.0

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