IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESWTATE JURISDICTION NOTICE OF MOTION NO. 46 OF 2009 IN TESTAMENTARY SUIT NO. 58 OF 2007 IN TESTAMENTARY PETITION NO. 620 OF 2007 Bijendra Ramkailash Singh........ Petitioner/ Plaintiff versus Hinduja Foundation Trust & anr........Respondents/Defendants. Mr. J.A. Udaypuri i/b. V.S. Bhorge adv. For the Plaintiff Mr. Arif Bookwala Sr.counsel with Kapil Moye, Vinayak Vengulekar i/b Crowford Bayley & co. adv. For the Defendant/caveators. CORAM: A. P DESHPANDE, J. DATED : 30th June/ 9th July, 2009. P. C.: 1. This petition is for probate of last will and testament of Ramkishoredas Baldevdas @ Ramkishoredas Sadhanwala @ Ramkishoredas, @ Ramkishore Baldevdas. 2. The Notice of Motion is taken out by the Petitioner/Plaintiff for discharge of the caveat filed by the caveators who are two in number viz. Hinduja Foundation Trust and Ashok Parmanand Hinduja. The Caveators in their affidavit in support of the caveat are challenging the title of the testator to the estate left behind by him. It is the case of the Caveator that the predecessor in title of the Plaintiff has transferred the properties in favour of the caveators and thus the Petitioner/plaintiff does not possess the title to the estate. The settled position in law as is reflected in the recent Supreme Court Judgment in Krishna Kumar Birla’s case reported in 2000(4) SCC 300, is that the person disputing the title of the testator cannot maintain a caveat. For maintaining the caveat the caveator must admit the title of the deceased testator and then claim an interest in the estate. In the present case as a hostile title is set up by the caveator and as there is denial of the title of the testator the caveators have rendered themselves incapable of claiming any caveatable interest. The said position is obvious. In this view of the matter, it is obvious that the caveators cannot maintain the caveat by challenging the title of the testator. The learned counsel for the caveators make a limited prayer and the same is to the effect that the court should record that in this probate proceeding, the title to the property would not be in any manner adjudicated upon. It is obvious position in law. The jurisdiction of the Probate court is very limited and the same is only to examine the genuineness of the will and the probate court does not adjudicate the questions touching the ownership and title of the property for which adjudication, the parties need to have recourse to a different forum before appropriate court. Thus the caveat stands discharged. (A. P. Deshpande, J.)