Probate Court Not Competent to Determine Title; Caveator Challenging Testator’s Title Has No "Caveatable Interest": Bombay High Court
Court holds persons questioning ownership of property lack “caveatable interest”; revocation application declared held not maintainable.
Justice Sandeep V. Marne, Bombay High Court
The Bombay High Court has held that if a caveator questions the title of the testator in respect of the bequeathed properties, he cannot have any caveatable interest in probate proceedings. Further on the limited scope of probate jurisdiction, the Court reiterated that a Probate Court is not competent to determine questions of title, and such disputes must be agitated in independent civil proceedings. Accordingly, the Court set aside the trial court’s order and held that a revocation application founded on a challenge to the testator’s title is not maintainable.
The Court reconciled conflicting precedents on “caveatable interest” and observed that such interest exists only where the challenger stands to inherit the estate through the testator if probate is denied. In the present case, the respondents were not claiming inheritance through the testator but were instead asserting independent title adverse to her, thereby disentitling them from maintaining the revocation application.
Justice Sandeep V. Marne allowing the revision, the Court clarified that probate proceedings are limited in scope and do not adjudicate questions of title. Referring to Krishna Kumar Birla v. Rajendra Singh Lodha and Ors (2008) 4 SCC 300, and G. Gopal vs. C. Bhaskar and Ors (2008) 10 SCC 489 it noted “…the judgment in Krishna Kumar Birla is a direct authority on the principle that if the caveator challenges or questions the title of the testator in respect of bequeathed properties, he cannot have any caveatable interest. This in my view would reconcile the views in the two judgments."
Senior Advocate Dr. Abhinav Chandrachud appeared for the applicant and Senior Advocate S.M. Gorwadkar appeared for the respondent.
The matter pertained to a Will dated August 23, 2005, through which the testator bequeathed certain properties, including some in favour of her son-in-law (the applicant), while the remaining properties were left to her children, where Probate was granted in 2011.
Subsequently, relatives of the testator filed an application under Section 383 of the Indian Succession Act, 1925, seeking revocation of probate on the ground that the testator herself had no valid title to the properties.
The applicant challenged the maintainability of this revocation plea, contending that a person who disputes the title of the testator does not possess a “caveatable interest” in probate proceedings. However, the trial court rejected this objection, prompting the present revision.
Referring to Mahesh N. Bhat v. Mark Uppaluri 2018 SCC OnLine Bom 9891, the Bench rejected the contention that there is prohibition on issuance of probate in respect of wills which are not covered by clauses (a) and (b) of Section 57 of Indian Succession Act, 1925.
The Bench observed, “…The law in this regard is well settled by judgment of this Court in Mahesh N. Bhat (supra), in which it is held that Section 57 of the Indian Succession Act merely specifies the class of wills of which probate is necessary and it does not mean that probate cannot be granted of other wills. It is further held that for the wills that fall outside the class namely ‘wills made outside those towns or which relate to immovable properties situated outside the towns or both’, probate is merely optional”.
“The Trial Court has committed an error by exercising the jurisdiction with material irregularity by holding that the probate revocation application is maintainable, warranting interference by this Court in exercise of revisionary jurisdiction under Section 115 of the Code”, the Bench further noted.
Setting aside the trial court order which had upheld the maintainability of a plea seeking revocation of probate granted in respect of a Will executed by the deceased testator, Rajeshwari Nagarkar, it further observed, “There is no possibility of Respondent Nos.1 to 4 inheriting the bequeathed property through the testator in the event of revocation of the probate. Their case is that Rajeshwari (testator) herself was never the owner of the bequeathed property and that they are the real owners. Since this plea is raised, there is no question of Respondent Nos.1 to 4 inheriting the properties bequeathed by Rajeshwari, through her, in the event of revocation of the probate. They have already instituted a suit, in which the issue of title can be adjudicated, and which question falls outside the purview of the Probate Court”, it noted.
Accordingly, the Court set aside the trial court’s order and dismissed the application for revocation of probate as not maintainable.
Case Title: Sunil Waman Bhide v. Chandrahas Laxman Kanhere & Ors. [Neutral Citation: 2026:BHC-AS:12947]
Appearances:
Applicant: Dr. Abhinav Chandrachud, Rhishikesh M. Pethe, Advocates.
Respondents: Senior Advocate S.M. Gorwadkar, Swaraj M. Sawant, Harshal N. Mule and Varun H. Thanawala i/b Sujay H. Gangal, Advocates.