A person who is not an heir of the deceased and claims adversely to the testator does not have locus standi to file a caveat.

JUDGMENT - D.R. DHANUKA, J.:---The material facts having bearing on the preliminary issues framed by the Court regarding locus standi of the Caveator to file the Caveat herein are as under :

(a) On 30th June, 1983, the Testator Shri Shreeniwas alias Shrinath son of Manjanath Prabhu alias Shriniwas Manjunath Prabhu alias Shrinath Manjunath Prabhu died at Bombay. The deceased left his widow and two daughters, as mentioned in para 9 of the petition, i.e Mrs. Rukminibai Shriniwas Prabhu (widow), Vatsala Vinayak Pai (married daughter) and Jayshree Raghuvir Balgi (married daughter). The widow of the deceased is of unsound mind and is in the mental hospital in Kolhapur.

(b) Jayshree Raghuvir Balgi has filed this petition for probate in respect of the Will dated 4th September 1977 contending that the deceased has left the said Will as his last Will at the time of his death. Shri Gokuldas Sheshgiri Prabhu, the nephew of the deceased had filed a Caveat.

2. Even if the deceased had died intestate, the estate of the deceased would have been inherited by the widow and the daughters of the deceased. Under section 8 of Hindu Succession Act, 1956 when the relatives specified in Class I of the Schedule are in existence at the time of death of a Hindu who died intestate, relatives specified in Class II of the Schedule are not entitled to inherit. In such a situation, relatives not specified in Class I of the Schedule cannot be considered as heirs of the deceased. It is not possible to agree with the submission made on behalf of the Caveator that all the relatives of the deceased are to be considered as heirs of the deceased, whether the said relatives are specified in Class I of the Schedule or Class II of the Schedule.

3. In (Pirojshah Bikhaji v. Pistonji Merwanji)1, I.L.R. 34 Bom. 459, the Division Bench of our High Court held that only such person can file a caveat who has interest in the estate of the deceased person. It is also imperative that the Caveator must not dispute title of the deceased to the properties disposed of by Will. In other words the Caveator cannot claim adversely to the testator and seek resolution of a title dispute by the Probate Court. By this judgment, Chandavarkar, J., on behalf of the Division Bench, approved the principles of law laid down by the High Court of Calcutta in the welknown case of (Abhiram Dass v. Gopal Dass)2, reported in I.L.R. 17 Calcutta 48. It is well settled that the Probate Court cannot decide disputed questions of title in respect of the estate of the deceased and such disputes can be resolved only in a regular Civil Suit.

4. The learned Counsel for the petitioner has relied upon the judgment of High Court of Patna in the case of (Ramyad Mahton v. Ram Bhaju Mahton)3, I.L.R. 10 Patna 813. In this case, the objector had claimed that he was joint with the testator and that the property which the testator purported to dispose of by Will was joint Hindu family property. The Honourable Division Bench of the High Court of Patna held that the Caveator had no locus standi to object to the grant of letters of administration on such a ground. In this case, the High Court of Patna relied upon the ratio of the judgment of the High Court of Calcutta in the case of Abhiram Das v. Gopal Dass, reported in I.L.R. 17 Calcutta 48 referred to in para 3 hereof. In Abhiram Das v. Gopal Dass, the High Court of Calcutta held that the objector had no locus standi to file the caveat as he had no interest in the estate of the deceased. Similar the High Court of Patna held in the abovereferred case that the objector had no locus standi to file the caveat. I am in respectful agreement with the view taken by the High Court of Calcutta and the High Court of Patna in the above referred two cases.

5. The learned Counsel for the Caveator has relied upon the judgment of High Court of Orissa in the case of (M/s. Rao and Sons v. Chandramoni Dei)4, A.I.R. 1971 Orissa 95, in support of his contention that the Caveator had the necessa

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