Can Challenge To Testator's Title Be Raised In Probate Proceedings? Supreme Court To Decide
The Supreme Court appointed Rajasthan Additional Advocate General Padmesh Mishra as amicus curiae to assist it in determining whether revocation of probate can be sought on the ground that the title of properties bequeathed under a Will did not belong to the testator.
A bench of Justice Sanjay Karol and Justice Augustine George Masih issued notice returnable on September 21, 2026, on a plea challenging a Bombay High Court judgment which held that questions relating to title or ownership of property cannot be adjudicated in probate proceedings, as such disputes fall outside the jurisdiction of a Probate Court.
“Considering the importance of the issue involved, we request and appoint Shri Padmesh Mishra, learned Additional Advocate General as amicus curiae to assist the Court (pro bono)”, the Court observed.
The dispute concerns a Will under which properties were bequeathed by the testator. Probate of the Will was granted on December 13, 2011. The respondents before the HC sought revocation of the probate under Section 383 of the Indian Succession Act, 1925, contending that the testator herself did not have title to the properties bequeathed under the Will.
The Bombay High Court held that the respondents' challenge was fundamentally a challenge to the testator's title and therefore could not be examined in probate proceedings. The Court held that a Probate Court is concerned with the genuineness and due execution of the Will and cannot adjudicate questions concerning title to the properties covered by it.
The High Court examined the concept of "caveatable interest" in light of the Supreme Court's judgments in Krishna Kumar Birla v. Rajendra Singh Lodha, (2008) 4 SCC 300 and G. Gopal v. C. Bhaskar, (2008) 10 SCC 489.
The Supreme Court in G. Gopal had observed that even a slight interest in the estate of the testator may entitle a person to file a caveat. However, the High Court relied on Krishna Kumar Birla, which held that a caveator must show that the grant of probate would prejudice his right by defeating some other line of succession through which he claims inheritance.
The High Court further observed that Krishna Kumar Birla specifically held that a person questioning the title of the testator to the property or the testator's authority to dispose of it by Will would be a stranger to probate proceedings, since such questions cannot be effectively adjudicated by a Probate Court.
In the present case, the respondents were not claiming any right to inherit the properties through the testator. Their case was that the testator herself had no title to the properties. The High Court therefore held that they had no caveatable interest to maintain the revocation application.
The High Court also noted that the respondents had already instituted a substantive civil suit in which the question of title could be adjudicated. It consequently held that the application for revocation of probate was not maintainable and dismissed the revocation application.
Case no. – SLP (C) Diary No. 37295/2026
Case Title: Chandrahas Laxman Kanhere & Ors. v. Sunil Waman Bhide