SUNIL WAMAN BHIDE vs CHANDRAHAS LAXMAN KANHERE AND ORS.

2026:BHC-AS:12947
k 1/20 CRA 351 of 2023 with IA

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.351 OF 2023
Sunil Waman Bhide ....Applicant
V/S
Chandrahas Laxman Kanhere & Ors. ....Respondents
WITH
INTERIM APPLICATION NO.38657 OF 2025
IN
CIVIL REVISION APPLICATION NO.351 OF 2023
Sunil Waman Bhide ....Applicant
IN THE MATTER BETWEEN
Sunil Waman Bhide ....Applicant
V/S
Chandrahas Laxman Kanhere & Ors. ....Respondents
_________
Dr. Abhinav Chandrachud i/b Mr. Rhishikesh M. Pethe for the Applicant.
Mr. S.M. Gorwadkar, Senior Advocate with Mr. Swaraj M. Sawant,
Mr. Harshal N. Mule and Mr. Varun H. Thanawala i/b Mr. Sujay H. Gangal
for Respondent Nos.1 to 4.
__________

CORAM : SANDEEP V. MARNE, J.
RESERVED ON : 07 MARCH 2026.
PRONOUNCED ON : 17 MARCH 2026.
J U D G M E N T :
1. The Applicant has invoked revisionary jurisdiction of this Court
under Section 115 of the Code of Civil Procedure, 1908 (Code) for
th
challenging the order dated 20 December 2022 passed by the 11 Joint
Civil Judge Senior Division, Pune rejecting application at Exhibit-52
1 20
katkam Page No. of

::: Uploaded on - 17/03/2026 ::: Downloaded on - 17/03/2026 15:33:06 :::

k 2/20 CRA 351 of 2023 with IA

filed by him seeking dismissal of Miscellaneous Application No. 616 of
2013 filed by Respondent Nos.1 to 4. The Misc. Application is filed by
Respondent Nos. 1 to 4 seeking revocation of probate and according to
Applicant, the same is not maintainable as the revocation of probate is
sought mainly on the ground that the testator did not have title in the
properties in respect of which she executed the Will.
2. Very briefly stated, facts of the case are that Nalini alias
Rajeshwari Nagarkar (Rajeshwari) executed her Will dated 23 August
2005 in respect of various properties at Satara and bequeathed some of
the properties enumerated in paras-6(a) and (b) of the Will in favour of
her son-in-law, Shri. Sunil Waman Bhide (Applicant). The balance
properties were bequeathed to her three children. Respondent No.-5
Balkrishna Digambar Thatte was named as executor in the Will. The
testator passed away on 8 November 2008. The Executor filed
Miscellaneous Application No. 26 of 2010 for grant of probate in respect
of the Will dated 23 August 2005 before the Court of Civil Judge Senior
Division, Pune. The probate was granted by the Court on 13 December
2011. On or about 2 May 2013, Lakshman Gopal Kanhere and
Chandrahas Laxman Kanhere filed Misc. Application No. 616/2013 (MA)
seeking revocation of the probate under Section 383 of the Indian
Succession Act, 1925. The Applicant appeared in Miscellaneous
Application and sought framing of preliminary issues on maintainability
of the MA. By order dated 22 July 2014, Court framed preliminary issues
about maintainability of the MA. However, by order dated 13 January
2016, the Trial Court proceeded to hold that MA was maintainable and
rejected Applicant’s objection of maintainability.
2 20
katkam Page No. of

::: Uploaded on - 17/03/2026 ::: Downloaded on - 17/03/2026 15:33:06 :::

k 3/20 CRA 351 of 2023 with IA

3. Applicant challenged order dated 13 January 2016 passed by the
Trial Court holding the MA to be maintainable before this Court by filing
Civil Revision Application No.149 of 2016. By Order dated 20 February
2018, the Revision Application was disposed of granting liberty to the
Applicant to prefer fresh application for deciding the objection of
maintainability. Accordingly, Applicant preferred application at Exhibit-
52 once again praying for framing of preliminary issue and for deciding
the issue of maintainability. By the impugned order dated 20 December
2022, the Trial Court has proceeded to reject Applicant’s application
holding that MA for revocation of probate was maintainable. Aggrieved
by the order dated 20 December 2022, the Applicant has preferred the
present Revision Application. It appears that during the pendency of the
application, Respondent No.3 has passed away. However, her legal heirs
are already on record as pointed out in Interim Application No. 38657 of
2025.
4. Dr. Chandrachud, the learned counsel appearing for the Applicant
submits that the Trial Court has erred in rejecting the objection of
maintainability raised by the Applicant by relying on judgment of the
1
Apex Court in G. Gopal vs. C. Bhaskar and Ors. In G. Gopal (supra), the
Apex Court did not notice the earlier judgment in Krishna Kumar Birla
2
vs. Rajendra Singh Lodha and Ors. in which it is ruled that to sustain a
caveat, caveatable interest must be shown and that the Court must
proceed on acceptance of interest of the testator. That it has further
held that a person questioning existence of title in respect of estate or
capacity of the testator to dispose of the property by Will would be
1 (2008) 10 SCC 489
2 (2008) 4 SCC 300
3 20
katkam Page No. of

::: Uploaded on - 17/03/2026 ::: Downloaded on - 17/03/2026 15:33:06 :::

k 4/20 CRA 351 of 2023 with IA

stranger to the probate proceedings and none of such rights can be
effectively adjudicated in the probate proceedings. He further submits
3
that in Jagjit Singh and Ors. vs. Pamela Manmohan Singh , the Apex
Court noted the conflict in the decisions in Krishna Kumar Birla and G.
Gopal and made a reference to the larger bench. However, the appeal in
Jagjit Singh was withdrawn without answering the reference. He relies
on judgment of the Apex Court in the case of Saroj Agarwalla vs. Yasheel
4
Jain, which follows the judgment in Krishna Kumar Birla . He therefore
submits that now the law is fairly well settled that person questioning
title of the testator and right to execute will, does not have a caveatable
interest. That in the present case, Respondent Nos.1 to 4 essentially
seek to question title of the testator and right to make Will and
therefore application for revocation of probate filed by them is clearly
not maintainable.
5.
The Application is opposed by Mr. Gorwadkar, the learned Senior
Advocate appearing for Respondent Nos.1 to 4. He submits that filing of
Application for probate by the Applicant was itself an exercise in futility.
That the probate itself is superfluous and inconsequential. He submits
that the properties are at Satara and the alleged Will is executed at Pune
and that therefore, there is no requirement of seeking probate under
Section 213 read with Section 57 of the Indian Succession Act, 1925.
That Applicant has unnecessarily secured probate in respect of the
alleged Will, which has no valid existence in law. In support of his
contention that it is unnecessary to secure probate in respect of Will
executed outside the ordinary original civil jurisdiction of this Court,
3 (2010) 5 SCC 157
4 (2017) 14 SCC 285
4 20
katkam Page No. of

::: Uploaded on - 17/03/2026 ::: Downloaded on - 17/03/2026 15:33:06 :::

k 5/20 CRA 351 of 2023 with IA

Mr. Gorwadkar relies on judgments of this Court in Jyoti Jagdish Singhai
5
vs. State of Maharashtra , Kantabai Mahipat Sonavane vs. Nimba Onkar
6
Patil . He also relies on judgment of Apex Court in Kanwarjit Singh
7
Dhillon vs. Hardyal Singh Dhillon & Ors in support of his contention
that Probate Court is not competent to determine the question of title
to the suit properties. He submits that the real dispute between the
parties is in respect of title, which otherwise cannot be adjudicated in
probate proceedings. That the contesting Respondents have filed a
substantive suit involving the issue of title. He submits that Respondent
Nos.1 to 4 have share in the property allegedly bequeathed by
Rajeshwari. That therefore it is necessary for Respondent Nos.1 to 4 to
ensure that Applicant does not claim any rights on the strength of
superfluous probate secured by him. He would submit that the Trial
Court has applied its mind to the objection of the Applicant and has
twice rejected the baseless objection of the Applicant. He would
therefore pray for dismissal of the Revision Application.
6. In rejoinder, Dr. Chandrachud submits that there is no prohibition
under the statutory scheme of the Indian Succession Act on issuing
probate in respect of Will executed outside territorial limits of ordinary
original civil jurisdiction of this Court. In support, he relies on judgment
8
of this Court in Mahesh N. Bhat vs. Mark Uppaluri .
7. Rival contentions raised on behalf of the parties now fall for my
consideration.
5 1979 Mh.L.J. 308
6 1999 (4) ALL MR 263
7 (2007) 11 SCC 357
8 2018 SCC OnLine Bom 9891
5 20
katkam Page No. of

::: Uploaded on - 17/03/2026 ::: Downloaded on - 17/03/2026 15:33:06 :::

k 6/20 CRA 351 of 2023 with IA

8. Applicant has secured probate in respect of Rajeshwari’s Will
dated 23 August 2005 from the Court of Civil Judge Senior Division,
Pune, vide order dated 13 December 2011. The probate is secured on an
application made by the Executor Shri Balkrishna Digambar Thatte,
Respondent No.5.
9. Rajeshwari and Laxman are the children born to Radhabai.
Rajeshwari was married to Pandurang Nagarkar and has two sons
Shrinivas and Abhiram, and one daughter Priya Bhide. Applicant is
husband of Priya Bhide. Thus, Applicant is son-in-law of Rajeshwari.
Under Rajeshwari’s Will dated 23 August 2005, Rajeshwari bequeathed
properties bearing House Nos.90 and 91, Shaniwar Peth, Satara, and plot
alongwith structures standing thereon at Kamathipura, Sadar Bazar,
Satara Camp in favour of her son-in-law Sunil Bhide (Applicant). The
other two properties being agricultural lands and other properties
described in paragraph 5 are bequeathed in favour of her three children
Shrinivas, Abhiram and Priya in equal shares. The Executor has obtained
probate in respect of Rajeshwai’s Will.
10.
Rajeshwari’s brother Laxman Kanhere got aggrieved by issuance
of probate in respect of his sister-Rajeshwari’s Will. Laxman, alongwith
his son- Chandrahas Kanhere have accordingly filed Civil Miscellaneous
Application No.616 of 2013 in the Court of Civil Judge Senior Division
for revocation of probate dated 5 October 2011 in respect of
Rajeshewari’s Will. Laxman and Chandrahas essentially contended in
their revocation Application that Radhabai (mother of Rajeshwari and
Laxman) had executed Will dated 17 February 1992, apparently
6 20
katkam Page No. of

::: Uploaded on - 17/03/2026 ::: Downloaded on - 17/03/2026 15:33:06 :::

k 7/20 CRA 351 of 2023 with IA

bequeathing properties in the name of Rajeshwari. It is contended that
on 21 November 1997, the mother Radhabai made fresh Will
bequeathing properties in the name of Chandrahas. It is therefore
contended that by subsequent Will dated 21 November 1997, the earlier
Will executed by Radhabai in the name of Rajeshwari on 17 February
1992 has been cancelled and that therefore Rajeshwari did not have any
right, title or interest in the concerned properties and did not have right
to execute the Will dated 23 August 2005. The relevant pleadings in Civil
Miscellaneous Application No. 616 of 2013 read thus:
“ ( ) .
३ ता १७फेब्रुवारी१९९२रोजी श्रीमतीराधाबाईगोपाळकान्हेरेयांनीमृत्युपत्र
. . / /
करूनठेवलेलेहोते तेमृत्युपत्रराधाबाईगोपाळकान्हेरेयांनीता २१ ११ १९९७
. .
रोजीअखेरचेमृत्युपत्रकरूनठेवूनतेमृत्युपत्रयातीलअज)दारनं २श्री चंद्रहास
.
कान्हेरेयांचेनावेकरूनठेवलेलेआहे त्यामुळेराधबाईकान्हेरेयांनीकरूनठेवलेले
. त्यामुळे
१९९२चेराजेश्वरीपांडुरंगनगरकरयांचेनावचेमृत्युपत्रसंपुष्टातआलेलेआहे
.
ता १७फेब्रुवारी१९९२रोजीराधाबाईगोपाळकान्हेरेयांनीराजेश्वरीपांडुरंगनगरकर
.
यांनाकरूनदिदलेलेमृत्युपत्ररद्दबातलझालेलेआहे त्यामुळेसन१९९२चे
मृत्युपत्रावरूनराजेश्वरीनगरकरयांनाकाहीहीहक्कप्राप्तहोतनाही . १९९२च्या
. / /
मृत्युपत्रानेवतेमृत्युपत्रता २१ ११ १९९७च्याअखेरच्यामृत्युपत्रान्वयेरद्दझाले
.
असलेमुळेराजेश्वरीपांडुरंगनगरकरयांनाता २३ऑगस्ट२००५रोजीरद्दकेलेल्या
.”
मृत्युपत्रात्तीलदिमळकतीबाबतमृत्युपत्रकायद्यानेकरतायेणारनाहीनाही
11. Thus, Civil Miscellaneous Application No.616 of 2013 is filed
essentially contending that Rajeshwari did not have title in the
properties which she bequeathed inter alia in favour of Applicant and
that therefore the probate must be revoked.
12. 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.
7 20
katkam Page No. of

::: Uploaded on - 17/03/2026 ::: Downloaded on - 17/03/2026 15:33:06 :::

k 8/20 CRA 351 of 2023 with IA

13. The Applicant has relied on judgment of the Hon’ble Supreme
Court in Krishna Kumar Birla (supra) in which it is held that to sustain a
caveat, a caveatable interest must be shown. The test, according to the
Supreme Court, is whether the probate prejudices the right of the
caveator because it defeats some other line of succession in terms
whereof the caveator asserts his rights. The Apex Court has further held
that any person questioning existence of title in respect of the estate or
capacity of the testator to dispose of property by will on the ground
outside the law of succession, becomes a stranger to the probate. The
Apex Court has held in paragraphs 86 and 135 of the judgment as under:
“86. The propositions of law which in our considered view may be applied
in a case of this nature are:
(i) To sustain a caveat, a caveatable interest must be shown.
(ii) The test required to be applied is: Does the claim of grant of
probate prejudice his right because it defeats some other line of
succession in terms whereof the caveator asserted his right?
(iii) It is a fundamental nature of a probate proceeding that
whatever would be the interest of the testator, the same must be
accepted and the rules laid down therein must be followed. The
logical corollary whereof would be that any person questioning the
existence of title in respect of the estate or capacity of the testator to
dispose of he property by will on ground outside the law of succession
would be a stranger to the probate proceeding inasmuch as none of
such rights can effectively be adjudicated therein.”
135. It is too far-fetched a submission that a person having a remote family
connection or as an agnate is entitled to file a caveat. A reversioner or an
agnate or a family member can maintain a caveat only when there is a
possibility of his inheritance of the property in the event the probate of the
will is not granted. If there are heirs intestate who are alive, entertaining of a
caveat on the part of another family member or a reversioner or an agnate or
cognate would never arise.
(emphasis added)
14. It appears that without noticing the ratio of the judgment in
Krishna Kumar Birla, a Bench of coequal strength of the Hon’ble
8 20
katkam Page No. of

::: Uploaded on - 17/03/2026 ::: Downloaded on - 17/03/2026 15:33:06 :::

k 9/20 CRA 351 of 2023 with IA

Supreme Court later struck a slightly discordant note on the issue in G.
Gopal (supra) in which it is held that a person who has even a slight
interest in the estate of the testator is entitled to file caveat and contest
the grant of probate of the will of the testator. It is held in paragraph 5
of the judgment in G. Gopal thus:
“5. The only question that was agitated before us by Mr Thiagarajan,
learned counsel appearing for the appellant challenging the judgment of the
High Court revoking the probate granted in respect of the will executed by the
testator, was that the respondents having no caveatable interest in the estate
of the deceased, the application for revocation filed by them could not be
allowed. We are unable to accept these submissions made by Mr. Thiagarajan,
learned counsel appearing on behalf of the appellant only for the simple
reason that admittedly the respondents were grandchildren of the testator
and they have claimed the estate of the deceased on the basis of a settlement
deed executed by the testator himself which admittedly was revoked by the
testator. That being the position, we must hold that the respondents had
caveatable interest in the estate of the testator and, therefore, they are
entitled to be served before the final order is passed. It is well settled that if a
person who has even a slight interest in the estate of the testator is entitled to
file caveat and contest the grant of probate of the will of the testator.”
(emphasis added)
15. In G. Gopal , the Respondents before the Supreme Court, who had
sought revocation of the probate, were grandchildren of the testator and
had claimed estate of the testator on the basis of the settlement deed
executed by the testator and this was an admitted position. Thus if the
probate was revoked and the will was declared ineffective, the
Respondents therein would have succeeded to the estate of the testator.
Thus it appears that the judgment in G. Gopal is rendered in the peculiar
facts of the case where revocation of probate would have resulted in the
caveators inheriting the estate of the testator through the testator. It
also appears that the attention of the Hon’ble Supreme Court was not
invited to the law declared in the judgment in Krishna Kumar Birla while
rendering the judgment in G. Gopal . A very short time gap divides the
9 20
katkam Page No. of

::: Uploaded on - 17/03/2026 ::: Downloaded on - 17/03/2026 15:33:06 :::

k 10/20 CRA 351 of 2023 with IA

two judgments. The judgment in Krishna Kumar Birla was rendered at a
prior point of time on 31 March 2008 whereas the judgment in G. Gopal
was rendered subsequently on 3 September 2008. Also, there appears to
be harmony in the judgments in Krishna Kumar Birla and G. Gopal with
regard to the principle that a person, who is likely to succeed to the
estate of the testator upon revocation of the probate, can have a
caveatable interest. However, the observations in G. Gopal towards the
end of paragraph 5 that ‘ a person who has even a slight interest in the
estate of the testator is entitled to file caveat and contest the grant of
probate of the will of the testator’ creates an impression of some conflict
in the views expressed in the two judgments.
16. In Jagjit Singh (supra) a two Judge Bench of the Hon’ble Supreme
Court noticed the above conflict in views expressed in Krishna Kumar
Birla and G. Gopal and accordingly made a reference to the larger Bench.
21. It is thus evident that apparently conflicting views have been expressed by
the coordinate Benches of this Court on the interpretation of the expression
“caveatable interest”. In Krishna Kumar Birla case [(2008) 4 SCC 300] the
Bench did not approve the judgments of the Calcutta High Court
in Bhobosoonduri Dabee case[ILR (1881) 6 Cal 460] and the Madras High
Court in G. Jayakumar case [AIR 1972 Mad 212] wherein it was held that any
person having some interest in the estate of the deceased can come forward
and oppose the grant of probate. As against this, in G. Gopal case [(2008) 10
SCC 489], the dictum that a person who is having a slight interest in the estate
of the testator is entitled to file caveat and contest the grant of probate has
been reiterated.
22. This being the position, we feel that the issue deserves to be considered
and decided by a larger Bench. The Registry is directed to place the matter
before the Hon'ble the Chief Justice for appropriate order.
17. However, it appears that the very Civil Appeal in Jagjit Singh came
to be withdrawn and accordingly, the reference remained undecided.
10 20
katkam Page No. of

::: Uploaded on - 17/03/2026 ::: Downloaded on - 17/03/2026 15:33:06 :::

k 11/20 CRA 351 of 2023 with IA

18. However thereafter, in Saroj Agarwalla (supra) two Judge Bench of
the Apex Court, in the judgment delivered in the year 2017, has followed
the ratio of the judgment in Krishna Kumar Birla (supra) and has held in
paragraph 9 as under:
“9. The learned counsel for both the parties have addressed us at some
length as to the meaning of the words "caveatable interest". The matter is no
longer res integra in view of a detailed discussion of this term in Krishna
Kumar Birla v. Rajendra Singh Lodha, (2008) 4 SCC 300 . Paras 59 to 86 of this
judgment refer to large number of authorities of this Court as well as various
High Courts. The conclusions flowing from that judgment including the
proposition of law in para 86 clearly support the case of the respondents in
both the appeals that they have a caveatable interest. The test which may be
applied in the present case is: Does the claim of grant of probate prejudice the
respondent's right because it defeats some other line of succession in terms
whereof the respondent as a caveator asserted his/her right? Since the answer,
in the facts of the case would be in the affirmative, we are in agreement with
the view taken by the Division Bench that the respondents have a caveatable
interest.”
(emphasis added)
19. Though Mr. Gorwadkar has relied upon judgment of the Apex
Court in Kanwarjit Singh Dhillon (supra), far from assisting the case of
his clients, the judgment actually militates against them. The judgment
in Kanwarjit Singh Dhillon has been considered by the Hon’ble Supreme
Court in Krishna Kumar Birla . It is held by the Hon’ble Supreme Court in
Kanwarjit Singh Dhillon that it is not competent for Probate Court to
determine whether the testator had the authority to dispose of the
properties purported to be bequeathed by the will. It is further held that
Probate Court is not competent to determine question of title, nor it can
go into the question whether the properties bequeathed by the will were
joint ancestral properties or acquired properties of the testator. It is held
in paragraph 11 of the judgment as under:
“11. … … 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
11 20
katkam Page No. of

::: Uploaded on - 17/03/2026 ::: Downloaded on - 17/03/2026 15:33:06 :::

k 12/20 CRA 351 of 2023 with IA

him in a sound disposing state of mind without coercion or undue influence
and the same was duly attested. It was, therefore, not competent for the
Probate Court to determine whether late S. Kirpal Singh had or had not the
authority to dispose of the suit properties which he purported to have
bequeathed by his will. The Probate Court is also not competent to determine
the question of title to the suit properties nor will it go into the question
whether the suit properties bequeathed by the will were joint ancestral
properties or acquired properties of the testator.”
(emphasis added)
20. It would also be apt to take note of judgments of various High
Courts which have noticed the conflicting views expressed by the
Hon’ble Supreme Court in judgments in Krishna Kumar Birla and G.
9
Gopal (supra). In Jagdish Asarpota vs. Kusum Bharat Asarpota a Single
Judge of this Court, after taking note of the conflicting views expressed
in the two judgments, has held that the Hon’ble Supreme Court did not
notice the prior judgment in Krishna Kumar Birla while delivering the
judgment in G. Gopal . This Court held in paragraphs 29 and 35 as under:
“29.  Supreme Court in case of  Krishnakumar Birla  v.  Rajendra Singh
Lodha  (supra) has held that the jurisdiction of the Probate Court is limited
being confined only to consider the genuineness of the Will. A question of
title arising under the Act cannot be gone into the proceedings. Construction
of a Will relating to the right, title and interest of any other person is beyond
the domain of the Probate Court. A person to whom a citation is to be issued
or a caveator must have some interest in the estate of the testator. Any person
claiming any interest adverse to the testator or his estate cannot maintain any
application before the Probate Court. His remedy would be elsewhere. It is
held that the person who seeks to file a caveat must have an interest in the
estate left by the deceased. An interest must be wide one but such an interest
must not be one which would have the effect of destroying the estate itself.
Supreme Court in the said judgment has held that 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 inasmuch as none of such rights can
effectively be adjudicated therein. It is held that a probate proceedings should
not be permitted to be converted into a title suit and should not be permitted
to become an unchartered field to be trespassed into by persons even if he is
not affected by testamentary disposition. A contention can be raised only by a
person who has a caveatable interest. Supreme Court has held that if there are
9 2015 (1) Mh.L.J. 127
12 20
katkam Page No. of

::: Uploaded on - 17/03/2026 ::: Downloaded on - 17/03/2026 15:33:06 :::

k 13/20 CRA 351 of 2023 with IA

heirs intestate who are alive, entertaining of a caveat on the part of another
family of a reversioner or an agnate or cognate would never arise.
xxx
35. Insofar as judgment of Supreme Court in case of  G. Gopal  (supra) relied
upon by the learned counsel appearing for the caveators is concerned, it is
clear that the Supreme Court did not notice the judgment in case
of  Krishnakumar Birla  v.  Rajendra Singh Lodha  (supra) in the said judgment.
In any event, the facts of the case before the Supreme Court in the said case
are different.”
(emphasis added)
21. Pemla Ghosal v. Neelanjana
The Calcutta High Court in
10
Ghosal has also noted the conflict in the judgments of the Apex Court
and has held thus:
12. The perceived conflict between the K.K. Birla and G. Gopal appears from
the parameters as to what may amount to caveatable interest having been set
in the former and a line in the latter saying that the slightest interest in the
estate would allow the person a look-in.K.K. Birlahas referred to a plethora of
previous judicial pronouncements and, to the extent that it is held therein
that judgments on the issue rendered in the context of the law as it stood
prior to the 1956 Act were now no guide to throw light on the matter, it has
not been doubted in G. Gopal. In fact, G. Gopal did not notice or refer to K.K.
Birla. The position in law is that if two conflicting precedents of equal binding
value of a superior forum are cited, the Court can choose the one better-suited
in the context. It is on such basis that the dictum in K.K. Birla appears to be
the more considered opinion of the Supreme Court that is apposite in the
present context. The “slightest interest” principle may be applicable to the
class of objectors other than the relatives of the testator; but when a relative
of a superior class survives the testator, a relative of an inferior class cannot
have any interest in the estate of the testator if on the date of the protest or
grant the relative of the superior class is alive.
(emphasis added)
22. The Division Bench of the Delhi High Court in Vinod Kumar
11
Aggarwal v. State and Ors has also noticed the conflict in views of the
judgments in Krishna Kumar Birla and G. Gopal and has also noticed
withdrawal of the Appeal in Jagjit Singh rendering the reference to the
larger Bench unanswered. The Division Bench of the Delhi High Court
10 2011 SCCOnline Cal 644
11 FAO/OS 32 of 2020 decided by Delhi High Court on 22 December 2023
13 20
katkam Page No. of

::: Uploaded on - 17/03/2026 ::: Downloaded on - 17/03/2026 15:33:06 :::

k 14/20 CRA 351 of 2023 with IA

has however followed the ratio of the Apex Court judgment in National
12
Insurance Co. Ltd. v. Pranay Sethi and Ors. and held that since the
judgment in Krishna Kumar Birla was not noticed in G. Gopal, it was
bound by the ratio of the judgment in Krishna Kumar Birla . The Delhi
High Court has held thus:
41. It appears that the Hon'ble Apex Court in the case had not taken
note of the judgment passed in the case of Krishna Kumar Birla v.
Rajendra Singh Lodha & Ors. (supra) and held that even a slight
interest in the estate of a testator would entitle a person to file a
caveat and contest the grant of probate of will of the Testator.
42. The Hon'ble Apex Court later in its judgment dated 10.03.2010 in
the case of Jagjit Singh and Ors. Vs. Pamela Manmohan Singh : (2010) 5
SCC 157, noted that the views taken by the Hon'ble Supreme Court in
Krishna Kumar Birla v. Rajendra Singh Lodha & Ors . (supra) and G.
Gopal v. C Baskar and Ors (supra) were conflicting and referred the is-
sue to be considered by a Larger Bench. The said case Jagjit Singh and
Ors. Vs. Pamela Manmohan Singh (supra) was thereafter withdrawn by
the appellants and therefore, it appears that no reference is pending
before a larger bench of the Hon'ble Supreme Court as on date.
43. In such circumstances, it would be apposite to note the principle
laid down by the Hon'ble Supreme Court in the case of National Insur-
ance Co. Ltd. v. Pranay Sethi : (2017) 16 SCC 680. The same reads as un-
der:
"16. Presently, we may refer to certain decisions which deal
with the concept of binding precedent.
17. In State of Bihar v. Kalika Kuer alias Kalika Singh and others,
it has been held: - "10. ... an earlier decision may seem to be in-
correct to a Bench of a coordinate jurisdiction considering the
question later, on the ground that a possible aspect of the mat-
ter was not considered or not raised before the court or more
aspects should have been gone into by the court deciding the
matter earlier but it would not be a reason to say that the deci-
sion was rendered per incuriam and liable to be ignored. The
earlier judgment may seem to be not correct yet it will have the
binding effect on the later Bench of coordinate jurisdiction. ..."
The Court has further ruled:
"10. ... Easy course of saying that earlier decision was rendered
per incuriam is not permissible and the matter will have to be
12 (2017) 16 SCC 680
14 20
katkam Page No. of

::: Uploaded on - 17/03/2026 ::: Downloaded on - 17/03/2026 15:33:06 :::

k 15/20 CRA 351 of 2023 with IA

resolved only in two ways -- either to follow the earlier decision
or refer the matter to a larger Bench to examine the issue, in
case it is felt that earlier decision is not correct on merits."
18. In G.L. Batra v. State of Haryana and others, the Court has
accepted the said principle on the basis of judgments of this
Court rendered in Union of India v. Godfrey Philips India Ltd.,
Sundarjas Kanyalal Bhatija v. Collector, Thane, Maharashtra
and Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Pa-
tel. It may be noted here that the Constitution Bench in Madras
Bar Association v. Union of India and another, has clearly stated
that the prior Constitution Bench judgment in Union of India v.
Madras Bar Association is a binding precedent. Be it clarified,
the issues that were put to rest in the earlier Constitution
Bench judgment were treated as precedents by latter Constitu-
tion Bench."
44. Therefore, we are bound to follow the law as laid down by the
Hon'ble Apex Court in Krishna Kumar Birla v. Rajendra Singh Lodha &
Ors. (supra).
(emphasis added)
23. However, recently, the Apex Court has held in A. P. Electrical
13
Equipment Corporation Vs. Tahsildar & Ors . that if the two judgments
of the Supreme Court are inconsistent, the High Court cannot follow one
by overlooking the other. The High Court needs to respect both the
decisions and attempt to reconcile them and follow that decision whose
facts appear more in accord with those of the case at hand. It is held
thus:
35. If two decisions of this Court appear inconsistent with each other, the
High Courts are not to follow one and overlook the other, but should try to
reconcile and respect them both and the only way to do so is to adopt the wise
suggestion of Lord Halsbury given in Quinn v. Leathern, [1901] A.C. 495 and
reiterated by the Privy Council in Punjab Cooperative Bank Ltd. v. Commr. of
Income Tax, Lahore AIR 1940 PC 230:
“…… every judgment must be read as applicable to the particular facts
proved or assumed to be proved, since the generality of the expres-
sions, which may be found there, are not intended to be expositions of
the whole law, but governed or qualified by the particular facts of the
case in which such expressions are to be found.” 
13 2025 SCCOnline SC 447
15 20
katkam Page No. of

::: Uploaded on - 17/03/2026 ::: Downloaded on - 17/03/2026 15:33:06 :::

k 16/20 CRA 351 of 2023 with IA

and follow that decision whose facts appear more in accord with those of the
case at hand.
(emphasis added)
24. Applying the principle enunciated in A. P. Electrical Equipment
Corporation that the High Court must reconcile the two conflicting
judgments of the Supreme Court and follow the decision that is more in
accord with the facts of the case, in my view, the observations in the
judgment in G. Gopal cannot be followed in the present case. On
reconciliation of views expressed in the two judgments, it is seen that
there is some harmony in the two judgments so far as the principle of
caveator succeeding to the estate of the testator through the testator. In
G. Gopal though ‘slight interest’ theory is propounded, the judgment
ultimately upholds the caveatable interest of Respondents therein
because they were likely to succeed to the estate of the testator through
the deed of settlement executed by the testator. In G. Gopal , the case did
not involve challenge to the title of testator in respect of the
bequeathed properties. On the other hand 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. Here the caveators are
not going to succeed to the bequeathed properties through the testator,
even if the probate is revoked, which was the case in G. Gopal where the
testator had made a Settlement Deed, which was nullified through the
will and therefore if the probate was revoked, the caveator would
succeed to the bequeathed properties through the testator on the
strength of Settlement made by him. Also, it is seen that the view
expressed by the Hon’ble Supreme Court in Krishna Kumar Birla has
16 20
katkam Page No. of

::: Uploaded on - 17/03/2026 ::: Downloaded on - 17/03/2026 15:33:06 :::

k 17/20 CRA 351 of 2023 with IA

been followed both by the Supreme Court as well as by this Court and
Calcutta and Delhi High Courts. Apart from the fact that the judgment
in Krishna Kumar Birla was delivered at a prior point of time, it also
contains a more elaborate discussion for holding that a person
questioning existence of title of testator is stranger to the probate
proceedings. In the present case, the Respondent Nos. 1 to 4 are
questioning the title of the testator claiming that she was not the owner
of the properties in respect of which she made the Will.
25. The learned Judge has rejected the objection of maintainability of
Civil Miscellaneous Application No.616 of 2013 by following the ratio of
judgment in G. Gopal . Attention of the learned Judge was apparently not
drawn to prior judgment of the Apex Court in Kanwarjit Singh Dhillon ,
Krishna Kumar Birla as well as to the subsequent judgment in Saroj
Agarwalla .
26. In the present case, Respondent Nos.1 to 4 have clearly
questioned title of the testator to make the Will and to bequeath the
properties. That issue is clearly outside the jurisdiction of the Probate
Court. Therefore, it is difficult to hold that Respondent Nos.1 to 4 have
caveatable interest for maintaining application for revocation of
probate.
27. Mr. Gorwadkar has sought to contend that the probate needs to be
revoked since the same is issued without jurisdiction. Though this
contention is sought to be urged by him, the same is not the case of his
clients before the Trial Court. He however submits that since the issue
goes to the root of the matter, the same can be raised directly before this
17 20
katkam Page No. of

::: Uploaded on - 17/03/2026 ::: Downloaded on - 17/03/2026 15:33:06 :::

k 18/20 CRA 351 of 2023 with IA

Court. The contention is premised on provisions of Section 57 read with
Section 213 of the Indian Succession Act, which mandates probate in
respect of wills executed within the limits of Ordinary Original Civil
Jurisdiction of this Court. It is contended that the Will is executed at
Pune and that the properties are located at Satara and that therefore
issuance of probate is without jurisdiction and is otherwise superfluous.
In support of contention that absence of requirement to secure probate
in respect of wills executed outside the limits of ordinary original civil
jurisdiction of this Court, reliance is placed on the judgments of this
Court in Jyoti Jagdish Singhai (supra) and Kantabai Mahipat Sonavane
(supra). Mr. Gorwadkar has gone to the extent of contending 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. 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. This
Court held in paragraph 5 of the judgment as under:
“5. It seems to me clear that all that this section does is to specify the class of
Wills of which probate is necessary. That class covers Wills made in one of the
specified towns, i.e., the presidency towns; or where the Will in question
relates to immovable property within the local limits of the ordinary original
civil jurisdiction of the High Courts in those towns. This does not mean that
Probate cannot be granted of other Wills that fall outside the class, i.e., Wills
made outside those towns, or which relate to immovable property situated
outside towns, or both. Thus, a Will made outside Mumbai, and relating to
immovable property outside Mumbai does not compulsorily require probate.
18 20
katkam Page No. of

::: Uploaded on - 17/03/2026 ::: Downloaded on - 17/03/2026 15:33:06 :::

k 19/20 CRA 351 of 2023 with IA

For such a Will, probate is merely optional. The section does not say that
probate of such a Will cannot be granted.”
28. It therefore cannot be concluded that grant of probate is invalid
merely because the Will is executed in Pune or immovable properties
are situated in Satara.
29.
The conspectus of the above discussion is that 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 in respect of property bequeathed by
her. It is also not that the probate prejudices the right of Respondent
Nos.1 to 4 on account of it defeating some other line of succession in
terms whereof they assert their rights. 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.
30. I am therefore of the view that the Trial Court has erred in
rejecting the application filed by the Applicant at Exhibit-52. The Trial
Court has committed an error by exercising the jurisdiction with
material irregularity by holding that the probate revocation application
19 20
katkam Page No. of

::: Uploaded on - 17/03/2026 ::: Downloaded on - 17/03/2026 15:33:06 :::

k 20/20 CRA 351 of 2023 with IA

is maintainable, warranting interference by this Court in exercise of
revisionary jurisdiction under Section 115 of the Code.
31. The Civil Revision Application accordingly succeeds, and I
proceed to pass the following order:
i) Order dated 20 December 2022 passed on Application at Exhibit-
52 filed in Miscellaneous Application No.616 of 2013 is set aside.
ii) Miscellaneous Application No.616 of 2013 filed for revocation of
probate of Will of Rajeshwari Pandurang Nagarkar is held to be
not maintainable.
iii) Consequently, Miscellaneous Application No.616 of 2013 is
dismissed.
32. Civil Revision Application is allowed in above terms. There shall
be no order as to costs.
33. In view of disposal of the Civil Revision Application, pending
Interim Application does not survive and the same is also accordingly
disposed of.
(SANDEEP V. MARNE, J.)
Digitally
signed by
SUDARSHAN
RAJALINGAM
KATKAM
Date:
2026.03.17
14:44:44
+0530
SUDARSHAN
RAJALINGAM
KATKAM
20 20
katkam Page No. of

::: Uploaded on - 17/03/2026 ::: Downloaded on - 17/03/2026 15:33:06 :::