Revocation of Probate Not Maintainable on Grounds of Title Dispute. Bombay High Court

Civil Revision Application challenging the Trial Court's order on maintainability of revocation of probate proceedings

Applicant seeks dismissal of Miscellaneous Application No. 616 of 2013 filed by Respondent Nos.1 to 4 for revocation of probate

Applicant aggrieved by Trial Court's order dated 20 December 2022 rejecting his application to dismiss the revocation application on maintainability grounds

The executor of the Will had initially filed Miscellaneous Application No. 26 of 2010 before the Civil Judge Senior Division, Pune, seeking probate, which was granted on 13 December 2011. Thereafter, Respondent Nos. 1 to 4 filed Miscellaneous Application No. 616 of 2013 seeking revocation of the probate. The Applicant raised an objection to the maintainability of the revocation application, and preliminary issues were framed. However, by order dated 13 January 2016, the Trial Court held the application to be maintainable. The Applicant challenged this order before the High Court by filing Civil Revision Application No. 149 of 2016. The High Court disposed of that revision on 20 February 2018, granting liberty to the Applicant to file a fresh application on maintainability. Pursuant to this liberty, the Applicant filed Application at Exhibit-52 again raising the issue of maintainability. The Trial Court, by order dated 20 December 2022, rejected the objection and again held the revocation application maintainable. Aggrieved by this order, the Applicant filed the present Civil Revision Application No. 351 of 2023 before the Bombay High Court.

Whether the Miscellaneous Application for revocation of probate is maintainable under Section 383 of the Indian Succession Act, 1925 when revocation is sought on the ground of testator's lack of title to properties

Applicant’s Arguments: The Applicant contended that the revocation application is not maintainable as it is based on questioning the testator’s title to the property, which falls outside the scope of probate proceedings. It was argued that persons raising such disputes do not have caveatable interest. Reliance was placed on Krishna Kumar Birla v. Rajendra Singh Lodha and Saroj Agarwalla v. Yasheel Jain. Respondents’ Arguments: Respondent Nos. 1 to 4 contended that the probate itself was unnecessary as the Will was executed outside the presidency towns, and therefore Sections 57 and 213 of the Indian Succession Act were not attracted. They further argued that probate proceedings cannot decide questions of title, and since a substantive title dispute exists, revocation should be entertained. Reliance was placed on Kanwarjit Singh Dhillon v. Hardyal Singh Dhill

A probate or its revocation under Section 383 of the Indian Succession Act, 1925 can be maintained only at the instance of a person having a caveatable interest, i.e., a person who can claim a possibility of inheritance through the testator. A person who challenges the title or ownership of the testator in respect of the bequeathed property asserts an independent and adverse claim and is therefore a stranger to probate proceedings. Since probate courts are confined to examining the validity and due execution of the will and cannot adjudicate questions of title, a revocation application founded solely on the ground that the testator lacked title to the property is not maintainable.

“ The short issue that arises for consideration is whether probate can be revoked on the ground of absence of title or capacity of testator to make the Will. ” “ It is well-settled law that the functions of a Probate Court are to see that the will executed by the testator was actually executed by him in a sound disposing state of mind without coercion or undue influence… It was not competent for the Probate Court to determine whether the testator had the authority to dispose of the properties… ” “ Any person questioning the existence of title in respect of the estate or capacity of the testator to dispose of the property by will on ground outside the law of succession would be a stranger to the probate proceeding… ” “ In the present case, the Respondent Nos. 1 to 4 are questioning the title of the testator… That issue is clearly outside the jurisdiction of the Probate Court. ” “ The Applicants in Civil Miscellaneous Application No. 616 of 2013 do not have a caveatable interest since they are seeking revocation of probate essentially by questioning title of the testator… ” “ The Trial Court has committed an error by exercising the jurisdiction with material irregularity by holding that the probate revocation application is maintainable… ” “ Miscellaneous Application No. 616 of 2013… is held to be not maintainable. ”

The executor filed Miscellaneous Application No. 26 of 2010 before the Civil Judge Senior Division, Pune seeking probate of the Will dated 23 August 2005, which was granted on 13 December 2011. Subsequently, Respondent Nos. 1 to 4 filed Miscellaneous Application No. 616 of 2013 seeking revocation of the probate under Section 383 of the Indian Succession Act, 1925. The Applicant raised an objection to the maintainability of the revocation application, and preliminary issues were framed. However, by order dated 13 January 2016, the Trial Court held the application to be maintainable. The Applicant challenged this order by filing Civil Revision Application No. 149 of 2016 before the High Court. By order dated 20 February 2018, the High Court disposed of the revision granting liberty to file a fresh application on maintainability. Pursuant to this liberty, the Applicant filed Application at Exhibit-52 again raising the issue of maintainability. The Trial Court, by order dated 20 December 2022, rejected the objection and again held the revocation application maintainable. Aggrieved by this order, the Applicant filed the present Civil Revision Application No. 351 of 2023 before the Bombay High Court, which led to the present decision.

• Code of Civil Procedure, 1908: Section 115
• Indian Succession Act, 1925: Section 383, Section 213, Section 57