Bombay High Court
Shaunak Choksi vs Ketan Kishoredas Mehta on 6 April, 2026
2026:BHC-OS:8164
IA-2807-2024 & 2156-2023 (1).doc
Digitally
signed by
SHAGUFTA
SHAGUFTA QUTBUDDIN
QUTBUDDIN PATHAN
PATHAN Date:
2026.04.06
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
15:53:09
+0530 TESTAMENTARY AND INTESTATE JURISDICTION
INTERIM APPLICATION NO. 2807 OF 2024
(For Condonation of Delay)
IN
Caveat (L) NO. 191 OF 2018
IN
TESTAMENTARY PETITION NO.462 OF 2018
Ketan Kishoredas Mehta,
Age : 53 years, Occ : Business,
Hindu Indian Inhabitant of Mumbai,
Residing at 7, Shriniketan,
2nd Marine Cross Lane, 14, Queens Road,
Churchgate, Mumbai - 400 020
being one of the Beneficiary in the ...Applicant
Estate of Deceased above named (Org. Respondent)
IN THE MATTER BETWEEN :
Shaunak Harshad Choksi,
age about 65 years, Hindu,
Indian Inhabitant of Mumbai,
Occupation : Businessman, residing at
Choksi Villa, R.A. Kidwai Road,
Matunga, Mumbai-400 019
being one of the Executor and Trustee
named under the Last Will & Testament
of the Deceased above named
... Petitioner
And
Ketan Kishoredas Mehta,
Age : 53 years, Occ : Business,
Hindu Indian Inhabitant of Mumbai,
Residing at 7, Shriniketan,
2nd Marine Cross Lane, 14, Queens Road,
Churchgate, Mumbai - 400 020
being one of the Beneficiary in the
Estate of Deceased above named ... Respondent
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WITH
INTERIM APPLICATION NO.2156 OF 2023
IN
TESTAMENTARY PETITION NO.462 OF 2018
Shaunak Choksi,
age about 70 years, Hindu,
Indian Inhabitant of Mumbai,
Occupation : Businessman, residing at
Choksi Villa, 63, R.A. Kidwai Road,
Matunga, Mumbai-400 019
being one of the Executors and
Trustees named under the Last Will ...Applicant
and Testament of the Deceased abovenamed. (Org. Petitioner )
IN THE MATTER BETWEEN :
Shaunak Choksi,
age about 70 years, Hindu,
Indian Inhabitant of Mumbai,
Occupation : Businessman, residing at
Choksi Villa, 63, R.A. Kidwai Road,
Matunga, Mumbai-400 019
being one of the Executors and
Trustees named under the Last Will ... Petitioner
and Testament of the Deceased abovenamed.
And
Ketan Kishoredas Mehta,
Age : 49 years, Hindu Indian Inhabitant of
Mumbai, Occupation : Businessman,
Residing at 7, Shriniketan,
2nd Marine Cross Lane, 14, Queens Road,
Churchgate, Mumbai - 400 020 ... Caveator/
Respondent
------------
Mr. Gaurang Mehta a/w Ms. Vidhi Dharia, Ms. Rhea Mehta, and
Mr. Ameya Mahajan for the Applicant/Petitioner in IA/2156/2023 and for
the Respondent/Caveator in IA/2807/2024
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Mr. Rubin Vakil a/w Ms. Khushboo Chughani i/b Mr. Markand Gandhi for
the Respondent/Caveator in IA/2156/2023 and for the
Applicant/Petitioner in IA/2807/2024
------------
CORAM : SHARMILA U. DESHMUKH, J.
RESERVED ON : MARCH 9, 2026
PRONOUNCED ON : APRIL 6, 2026
ORDER :
1. Interim Application No. 2807 of 2024 has been preferred by the
Caveator seeking condonation of delay of 133 days in filing of the
affidavit in support of the Caveat. Interim Application No. 2156 of 2023
has been filed seeking dismissal of the Caveat. Both applications were
taken up for hearing together and common submissions were
canvassed and both applications are being decided by this common
order.
INTERIM APPLICATION NO 2807 OF 2024:
2. The Caveat is filed by one Ketan Kishoredas Mehta on 21 st July,
2018, claiming to be creditor of the deceased. The Affidavit in support
of Caveat was filed on 14th December, 2018. The application seeks
condonation of delay of 133 days caused in filing the Affidavit in
support of Caveat. Under Rule 402 of the Bombay High Court (Original
Side) Rules, the Caveat is required to be filed within eight days of
service of citation and the affidavit in support of Caveat is required to
be filed within 14 days of filing of Caveat. The application pleads that
the father of the Caveator, Kishoredas Mehta, had obtained decree
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dated 27th June, 2006 against the deceased and had also filed
insolvency petition in which the deceased was adjudicated as insolvent.
The said Kishoredas Mehta expired in the year 2011 and the Caveator is
one of the legal heirs of the deceased judgment creditor and entitled
to payment from the estate of the deceased. The Testamentary
Petition was not served upon the Caveator and the filing of the
Petition came to his knowledge on 21 st June, 2018. From 25th June,
2018 to 17th July, 2018, the Caveator was not in India and in the
meantime his Advocate addressed communication dated 30 th June,
2018 to the Official Assignee requesting it to take steps in respect of
the Testamentary Petition. After the Caveator’s return to India , the
Caveat was filed on 21st July, 2018. However due to dispute with
erstwhile advocate, the papers were returned to the Caveator and no
Affidavit in support was filed and the Caveat remained in objection.
The present Advocates came to be engaged on 31 st October, 2018 and
thereafter the Affidavit in support came to be filed on 14 th December,
2018.
3. The copy of the interim application was not served upon the
Petitioner and was served only at the time of hearing of the
application. In order to avoid further delay in the hearing, the matter
proceeded for hearing on the basis of denial with consent.
4. Mr. Vakil, learned counsel appearing for Caveator would submit
SQ Pathan 4/33
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that no citation was issued to the Caveator, despite the deceased
having expired as undischarged insolvent. He submits that the
Caveator took necessary steps after learning about the filing of the
Petition and the application sets out the dispute with the erstwhile
Advocate which explains as to why the Affidavit could not be filed in
support of Caveat within time. He submits that time was granted till 9 th
November, 2022 by the Learned Prothonotary and Senior Master to
comply with office objections and the present application was filed on
8th November, 2022.
5. Mr. Mehta, learned counsel appearing for Petitioner submits that
though the Affidavit in support of Caveat was filed on 14 th December,
2018, the present Application seeking condonation of delay was filed in
November, 2022 without any prayer for condoning the delay of almost
four years in filing the Interim Application. He submits that the Caveat
was abandoned by the Caveator and the present Application is by way
of afterthought. He submits that by order dated 2 nd August 2022, the
Prothonotary and Senior Master directed the Caveator to get the
Caveat registered and numbered before 13th September 2022, which
was not done. He submits that on 9th November 2022, more than four
years after lodging the Caveat, the application was filed for
condonation of delay in filing the affidavit, which also remained
pending for almost two years. He submits that the Petitioner filed
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Interim Application No. 2156 of 2023 for striking off the Caveat on
account of non-removal of office objections and alternatively, to
discharge/dismiss the Caveat, and thereafter steps were taken by the
Caveator to number interim application for condonation of delay,
which was numbered in September, 2024. He submits that the delay is
not of 133 days as sought to be projected but the Caveator has taken
period of almost six years in getting the present application registered
and numbered which shows gross negligence. He submits that by
reason of inaction by the Caveator, the Petition remained pending for
almost seven years and the intent is to cause obstruction in grant of
probate.
6. I have given my thoughtful consideration to the rival contentions
raised.
7. The Applicant was not cited in the Testamentary Petition but
learnt about the filing of the Testamentary Petition and accordingly
filed Caveat on 21st July, 2018. Rule 402 of the Bombay High Court
Original Side Rules provides that an affidavit in support of Caveat shall
be filed within eight days from the date of filing of the Caveat and no
such affidavit shall be filed after the expiry of period of eight days
without an order of the Judge in Chambers. The Affidavit in support of
Caveat was filed on 14th December, 2018 without applying for an order
for condonation of delay and hence the Caveat remained in objection
SQ Pathan 6/33
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and the testamentary petition was not converted into suit. The
present application has been filed after a period of almost four years
on 8th November, 2022 and there is no explanation for the delay and no
prayer for condonation of delay. The Applicant has calculated the
delay of 133 days by taking into consideration the period from the date
of filing of Caveat i.e. 21 st July, 2018 till the date of filing of Affidavit in
support of Caveat i.e. 14th December, 2018 but has failed to seek
condonation of delay for the inordinate delay of about four years in
filing the present application. Under Article 137 of Limitation Act, the
period of limitation for filing of the application would be three years
when the right to apply accrues. The period of limitation commenced
upon the delayed filing of the Affidavit in support of Caveat and in the
absence of any explanation and absence of relief seeking condonation
of delay, the present application is barred by limitation. Resultantly,
the application itself cannot be entertained and deserves to be
dismissed.
8. Apart from the above, for the proceedings to be converted into
contentious proceedings, the Rules set out prescribed timelines and
the delayed filing of the Affidavit in support of Caveat derailed the
entire proceedings as the Petition was neither converted into suit nor
proceeded for grant. Even after filing of the application in the year
2022, no efforts were taken to get the application numbered and
SQ Pathan 7/33
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circulated. The application has been numbered in the year 2024 and it
is not demonstrated that any attempt was made to circulate the
application for hearing.
9. The relief sought is for condonation of delay of 133 days which
does not seem such an inordinate delay, however, when considered
with the attendant circumstances, brings to the fore the inaction on
part of the Caveator to take timely steps in proceeding with the
opposition to the grant of Probate. Sans any explanation for the delay
in filing the present application, the only conclusion to be drawn is that
the intent is to delay the grant. Even accepting that there was dispute
with the erstwhile Advocate, the Caveator had obtained legal advice
and had filed the Affidavit in support. As there was delay, the
application ought to have been filed immediately for condoning the
delay. Instead the Caveat was kept under objection for number of
years. The Caveator has slept over the matter and after period of four
years preferred the present application without any explanation and
without seeking relief of condonation of delay. It is no answer to say
that time was granted by the registry to remove office objections and
the same cannot constitute an explanation for the delay. The written
submissions of the Caveator seeks to justify the delay in filing the
Affidavit in support of Caveat but offers no explanation for the delay in
filing the present application.
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10. The Court will not countenance such inaction and negligence as it
would be easy for a party to stall the grant by deliberately delaying the
filing of Affidavit in support of Caveat and then remain passive for
years without filing or circulating the application for condonation of
delay resulting in successful obstructing the grant without much effort.
Law comes to the aid of the parties who are diligent in pursuing their
remedies and not to the parties who have demonstrated negligence
and inaction.
11. In light of the above, though the application ostensibly seeks
condonation of delay of 133 days, the application itself is barred by
limitation. There is absolutely no explanation tendered for delay in
filing the present application and no relief sought for condonation of
delay of almost four years in filing the present application. I am
therefore not inclined to allow the application. Resultantly, the
Application stands dismissed.
12. Despite the dismissal of application for condonation of delay, as
this Court is convinced that even if the delay is condoned, the Caveator
has no Caveatable interest, the application for dismissal of Caveat is
being considered.
INTERIM APPLICATION NO 2156 OF OF 2023:
13. Testamentary Petition No. 462 of 2018 was filed seeking probate
of the last Will and Testament dated 24 th April 1997 of deceased
SQ Pathan 9/33
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Harshad Harilal Choksi, who, at the time of his death on or about 25 th
February 2010, was an undischarged insolvent. In the Testamentary
Petition, as initially filed on 11 th January 2018, there were no pleadings
about the deceased being an undischarged insolvent or that the
property vested in the Official Assignee. The schedule of assets to the
Testamentary Petition listed the immovable property being 100%
ownership of Plot No. 63, Choksi Villa, admeasuring 634.68 sq. meters,
including a garage, situated at King Circle, Mumbai 400 090, valued at
Rs. 33,31,92,006. On 21st July, 2018, one Ketan Kishoredas Mehta filed
Caveat (L) No 191 of 2018 opposing the grant of Probate and the
affidavit in support of Caveat was filed in December, 2018. The
Affidavit in support of Caveat brought on record the fact of the
deceased being an undischarged insolvent and that the father of
Caveator was creditor of the deceased and pursuant to the order of
adjudication of insolvency, the estate of the deceased vested in the
Official Assignee, with whom the deceased creditor had filed his
Affidavit of proof of claim.
14. Vide order dated 18th December, 2025, Petitioner was permitted
to amend the petition. By the amendment, the Petitioner sought to
incorporate the pleadings as regards the order of adjudication of
insolvency dated 16th June 2009, the vesting of the estate of the
deceased in the Official Assignee, disputing the proof of debts lodged
SQ Pathan 10/33
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with Official Assignee and sought to amend the schedule of assets to
restrict it to the surplus upon administration of the estate of the
deceased under the Insolvency Act. Exhibit `C’ described the
immovable properties, i.e., Choksi Villa, as well as the bank account of
the deceased, and by way of Exhibit `C-1′, the schedule of property of
deceased, described the right and entitlement of the deceased to
receive from the Official Assignee the movable and immovable
properties vested in the Official Assignee, either upon recall of order
of adjudication of insolvency Court or discharge of insolvency of the
deceased or the right or entitlement to receive the surplus.
15. The Caveat opposes the grant claiming that the Caveator is one
of the creditors of the deceased-Harshad Harilal Choksi. It is stated
that the Caveator’s father had obtained decree against the deceased
for sum of Rs. 38,43,422.12, which decree has attained finality. In
execution proceedings, the immovable property of the deceased came
to be attached, and as the decree was not satisfied, the Caveator’s
father filed Petition No. 18 of 2007 before this Court in insolvency
jurisdiction and vide order dated 16 th June 2009, the deceased was
adjudicated as an insolvent and the property of the deceased vested
with the Official Assignee, and the deceased ceased to have any
interest in the said property. After the death of the deceased, the
legal heirs, including the testamentary Petitioner, were impleaded as
SQ Pathan 11/33
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legal heirs of the deceased, and an order of status quo was passed in
respect of the estate of the deceased, and they were also directed to
make disclosures. Upon the death of the Caveator’s father, the
Caveator, along with the other legal heirs, was brought on record in the
insolvency petition. It is submitted that, being a creditor of the
deceased, the Caveator has a Caveatable interest in the estate of the
deceased and in the manner in which it is administered upon the
demise of the deceased, and despite thereof, no citation has been
issued to the Caveator’s late father or even to the Official Assignee in
whom the estate of the deceased vests. It was contended that the
Petition does not disclose that the deceased was an undischarged
insolvent and also suppresses the debts owed by the estate of the
deceased to various creditors, including the Caveator’s father. It is
submitted that the testamentary petition is seeking probate of the Will
after almost 8 years of his demise, which raises a suspicion about the
alleged Will, which may be a forged and fabricated document in order
to defeat the interest of the creditors.
16. Mr. Mehta, learned counsel appearing for the petitioner, submits
after the order of adjudication of insolvency, the father of the
Caveator, had filed proof of claim on 15 th October 2009 with the
Official Assignee, which was not proved during the lifetime of the
deceased creditor, and no effective steps were taken by the legal heirs
SQ Pathan 12/33
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of the deceased creditor before the Official Assignee. He submits that
by way of the probate petition, post the amendment granted, the
petitioner has brought on record that there are only two creditors who
had filed proof of claim and the total amount claimed is Rs. 11 crores or
thereabouts, which debts were seriously disputed. He points out that
by reason of the order of adjudication of insolvency, the assets of the
deceased have vested in the Official Assignee, and it is only the assets
which are listed in Exhibit `C-1′, i.e., the surplus which would come
either by reason of recall of order of adjudication or payment of debts,
in respect of which the probate petition is filed. He points out to
Section 276(1) of the Indian Succession Act, 1925 (for short,
`Succession Act‘), which provides for the application for probate to
state the amount of assets which are likely to come in the Petitioner’s
hands.
17. He submits that the creditor of the deceased testator has no
locus to object to the probate of the Will of the deceased testator and
has no Caveatable interest. He submits that the Caveator is not the
creditor but the legal heir of the creditor of the deceased, who has not
yet taken steps in respect of the proof of claim filed with the Official
Assignee. He submits that the grant of probate will not affect the
rights of the creditor, as the creditor is not concerned with whether the
Will is found to be genuine or not. He submits that the lodging of the
SQ Pathan 13/33
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Caveat is against the express legal bar contained in Section 17 of the
Presidency Towns Insolvency Act, 1909 (for short “Insolvency Act“), as
the creditor of a deceased insolvent, by virtue of vesting of the
property in the Official Assignee, does not have any remedy against
the property of the insolvent in respect of the debt claimed, and there
is a legal bar against the creditor on initiating legal proceedings qua
the same. He submits that the Caveat is, therefore, barred by law, not
maintainable and requires to be rejected at the threshold.
18. He would submit that the Caveator, as the alleged creditor of the
deceased insolvent, cannot take any stand independent of the Official
Assignee, who is appointed for the benefit of the general body of
creditors of the deceased insolvent and the interest of the body of the
creditors lies with the Official Assignee. He submits that the Official
Assignee has not objected to the probate petition and, therefore, the
Caveator has no locus. He submits that, post order of adjudication of
insolvency, the rights of such creditor are not against the insolvent
debtor or his estate but only against the Official Assignee to ensure
due administration of the property of the insolvent by the Official
Assignee for payment of debts of the creditors.
19. He would submit that an executor of a Will of the deceased
insolvent is his legal representative within the meaning of Section 211
of the Succession Act and is entitled to exercise all rights, interest, and
SQ Pathan 14/33
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enjoyment of the deceased insolvent, under the Insolvency Law.
20. He submits that the claims made by the deceased creditor are
seriously disputed and not adjudicated though litigation is pending
since last more than two decades. He submits that the deceased
creditor and, after his demise, his legal representatives are merely
contingent creditors who have no present right to inherit.
21. He submits that the right and entitlement of the deceased
insolvent is to the surplus as contemplated under Section 76 of the
Insolvency Act, which is the property of the deceased and devolve
upon the executors of the Will upon his demise. He submits that the
probate was mandatory to establish rights under the Will. He submits
that the probate petition has been filed by the executors, and there is
no bar either under the Insolvency Act or the Succession Act barring a
testamentary petition in respect of the Will left behind by the
deceased insolvent. In support, he relied on the following decisions :
(i) Purushottam Vishandas Raheja vs. Asha Shrichand
Raheja & Anr.1
(iii) C. P. Paul vs. M/s. Hydro Power Constructions,
Kothamangalam & Ors.3
1 Order dated 26.07.2016 passed in Appeal No.598/2011 in NM/22/2011 in Petition/1172/2010
2 Madras Series Vol. XVII 373
3 (1996) ILR 2 Ker 536 (KER) : AIR 1996 KERALA 324SQ Pathan 15/33
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(iv) Surya Prakash S. Makharia vs. Pramod Kumar Makharia 4
(v) Hemraj Champa Lall vs. Ramkishen Ram5
22. Mr. Vakil, learned counsel appearing for the Caveator submits
that the Caveator being creditor of the deceased has Caveatable and
special interest in the estate of the deceased. He submits that the
Caveator’s father is decree holder in respect of an adjudicated final
claim and Petitioner in insolvency proceedings. He submits that the
Caveator is legal heir of the creditor and represents the estate of the
creditor. He submits that the claim of the Caveator is not adverse to
the estate of the deceased and only seeks to assert his right to recover
debts due from the estate of the deceased in insolvency proceedings.
He distinguishes the decisions cited by Mr. Mehta and would submit
that the decisions of the Madras High Court and the Kerala High Court
are prior to the decision of the Hon’ble Apex Court in Krishna Kumar
Birla vs. Rajendra Singh Lodha & Ors. 6. Insofar as decision of Surya
Prakash S. Makharia vs. Pramod Kumar Makharia (supra), is
concerned, he submits, in that case the claim of the Caveator was of
contingent nature and the Caveator therein had sought to challenge
the title of the deceased testator to the property. He submits that in
present case, Caveat has been filed for administration of the estate of
4 AIR Online 2024 BOM 2336
5 AIR 1916 Patna 279
6 (2008) 4SCC 300
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the deceased and is not any claim relating to property of the insolvent,
and hence the decision in Hemraj Champa Lall vs. Ramkishen Ram
(supra), is clearly misconceived.
23. He assails the maintainability of testamentary petition during
the continuance of the insolvency proceedings, as the Insolvency Act is
a special legislation and is a code in itself providing for a mechanism to
deal with the assets and estate of the insolvent. He would point out
Sections 108 to 111 of Insolvency Act dealing with the administration
of the deceased debtor’s estate. He submits that in case of an insolvent
dying as an undischarged insolvent, the estate of insolvent rests in the
Official Assignee who is in charge of the administration of the estate.
He submits that in case of deceased dying as an undischarged
insolvent, if parallel proceedings for administration of his estate is held
to be maintainable then incongruous situation would arise where a
person being declared insolvent after his demise will be governed by
the Insolvency Act for the administration of his estate, whereas a
person dying as an undischarged insolvent will not be subject to the
administration of the estate under the Insolvency Act.
24. He submits that a reading of Section 273 of the Succession Act
and Rule 374 of High Court Rules would indicate that the existence of
property of a deceased person is a precondition for filing of a petition
for probate. He submits that where a person dies as an undischarged
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insolvent, no estate of such person would exist in law, as the property
of an insolvent vests in the Official Assignee and thus the jurisdictional
fact for maintaining a petition for grant of probate is absent. He
submits that the Official Assignee sought relief of transfer of the
testamentary petition to the insolvency court, which is different from
the Caveator’s contention that the testamentary petition is not
maintainable.
25. He submits that the contention of the petitioner upon
amendment, claiming only the surplus under Section 76 of the
Insolvency Act is misconceived, as admittedly, there is no order of
discharge of the deceased from insolvency under Section 58, and hence
the provisions of Section 76 are not attracted. He submits that the
schedule of property at Exhibit `C-1′ of the petition is speculative and
without any basis. He submits that a comparison of Exhibit `C’ and
Exhibit `C-1′ shows that the value of assets is identical, and hence an
attempt is being made to obtain probate in respect of the entire
purported estate of the deceased.
26. He would submit that the original Petitioner, though being a
party to the insolvency petition, suppressed the insolvency
proceedings and vesting of estate in Official Assignee in the
testamentary petition and he submits that there is no disclosure about
the existence of the Will in the insolvency proceedings. He submits
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that the application for amendment was filed seven years after the
filing of the affidavit in support of the Caveat. He submits that, in view
of the Petitioners’ conduct, the Caveator’s presence is necessary to
protect the interest of the creditor in testamentary proceedings. In
support, he relies upon the following decisions:
(supra);
(ii) Sanwarmal Kejriwal vs. Vishwa Co-op. Hsg. Society Ltd. &
Ors.7
27. In rejoinder, Mr. Mehta would submit that the decision of
Krishna Kumar Birla vs. Rajendra Singh Lodha & Ors. (supra) does not
lay down an absolute proposition that the creditor of a deceased
testator can maintain a Caveat to oppose the probate petition. He
submits that, in that case, the Hon’ble Apex Court was not considering
Caveatable interest of creditor. He would submit that the decision in
the case of Sarala Sundari Dassya vs. Dinabandhu Roy Brajaraf Saha
(Firm)8 arose out of revocation petition filed by the creditor, and in
that context, it was held that a creditor of the legal heir of the
deceased testator would have locus to file revocation petition. He
points out that in paragraphs 101 and 102 of the decision in Krishna
Kumar Birla vs. Rajendra Singh Lodha & Ors. (supra), the Hon’ble
7 (1990) 2 SCC 288
8 AIR 1844 PC 11.
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Apex Court has acknowledged that the decisions relating to revocation
of grant are not applicable to the facts of that case. He submits that, in
the present case, the estate of the deceased is being represented by
his executors, and even applying the test formulated by the Hon’ble
Apex Court in the case of Krishna Kumar Birla vs. Rajendra Singh
Lodha & Ors. (supra), the Caveat is not maintainable.
28. He would further submit that there is no conflict or repugnancy,
between Insolvency Act and the Succession Act, both of which are
general legislations and operate in different fields and spheres. He
submits that Sections 108 to 111 of Insolvency Act are special
provisions having no application as the adjudication order of insolvency
was passed under Part II of the Insolvency Act. He submits that Part X
applies only when a debtor has not been adjudicated insolvent during
his lifetime and gives his legal representative an opportunity to contest
the petition filed by a creditor upon the demise of the debtor under
Section 108 of the Insolvency Act. He submits that, pertinently, Section
109(4) of the Insolvency Act provides for payment of the surplus to the
legal representative of the deceased debtor after the administration of
the estate, which indicates a need to obtain grant of legal
representation even before completion of administration of the estate.
29. I have given my anxious consideration to the rival contentions.
30. The Caveator is the legal heir of the judgment creditor in respect
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of an adjudicated claim against the deceased under decree dated 27 th
June 2006. The father of the Caveator was the petitioning creditor in
insolvency petition, whereby the deceased was adjudicated as an
insolvent. The issue which arises for consideration is whether the
Caveator has a Caveatable interest to oppose the grant of Probate. The
Affidavit in support of Caveat sets out the details of litigation between
the father of the Caveator and the deceased resulting in the suit being
decreed and the subsequent insolvency proceedings wherein the
deceased was adjudicated an insolvent, various orders passed in
insolvency proceedings, and litigation pertaining to the property of the
deceased. The Affidavit thereafter sets out the steps taken by the
Caveator in filing of Caveat and the affidavit subsequent to the
discovery of the filing of the Testamentary Petition. The relevant
portion of paragraph 4 and 17 of the Affidavit states as under:
“4. ….Since the deceased failed to comply with the said order,
the deceased was adjudicated as an insolvent and the
property of the deceased, thereafter vested with the official
assignee of this Hon’ble Court under the provisions of
Presidency Towns Insolvency Act, 1909 and the deceased
ceased to have any interest in these properties.”
“17. I apprehend that the Petitioner was son of the deceased
has suppressed and not disclosed the aforesaid facts before
this Hon’ble Court in the present petition including the fact
that the deceased was an undischarged insolvent at the time
of his demise. Having regard to the fact that the Petitioner
has blatantly misrepresented and suppressed the status of
the assets of the deceased before the Insolvency Court asSQ Pathan 21/33
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this Hon’ble Court thereby jeopardizing the interest of the
creditors of the deceased including myself and other legal
heirs of my late father. The Petitioner may have also
misrepresented facts about the debts owed by the estate of
the deceased to various creditors including my late father to
deprive these creditors of their dues. In any event, it is
surprising that the Petitioner is seeking probate of the Will of
his late father after almost 8 years from his demise. This itself
causes suspicion about the alleged Will and the contents
thereof. I believe that the alleged Will may be forged and
fabricated document which has been gotten up to defeat the
interest of the creditors of the deceased including my late
father. I also do not admit that the deceased had the
necessary testamentary capacity at the time when the
alleged Will was made.” (Emphasis supplied).
31. A careful reading of the Affidavit would indicate that the grant is
opposed by disputing the testamentary capacity of the testator to
bequeath the estate as the estate vested in the Official Assignee upon
the deceased being adjudicated an insolvent. In the written
submissions tendered by Mr. Vakil, it is stated that as on date there is
no property/estate of the deceased and in view of Section 17 of
Insolvency Act the Petition is not maintainable as there is no
estate/property of the deceased. It is submitted that in case of person
dying an undischarged insolvent, no estate of such person would exist
in law. The submissions thus border on setting up a title adverse to
that of the estate of the deceased albeit in the Official Assignee and
denial of the testamentary capacity of the deceased. The only ground
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for opposition of grant of Probate qua the Will is that the Will is
forged, fabricated and suspicious document to defeat interest of the
creditors, without any material pleadings to support the allegations.
32. The Petition as initially filed did not disclose the facts regarding
the deceased being an undischarged insolvent which facts have now
being brought on record by way of amendment. The Schedule of Assets
have been amended to described the assets which vest in the Official
Assignee at Exhibit “C” and Schedule of Assets which may come into
the hands of the Petitioner in the adjudication order is recalled or
there is discharge of insolvent or there is surplus at Exhibit “C-1”.
33. Under Section 70 of the Insolvency Act, upon the making of an
order of adjudication, the property of the insolvent, wherever situated,
shall vest in the Official Assignee and shall become divisible amongst
his creditors. The Official Assignee, under Section 68 of the Insolvency
Act, is entitled to realize the properties of the insolvent and apply the
proceeds for the payment of the debts of the insolvent. Pertinently,
Section 76 of the Insolvency Act provides that the insolvent shall be
entitled to any surplus remaining after payment in full of the creditors,
with interest as provided by the Act, and of the expenses of the
proceedings taken thereunder.
34. The statutory provisions of Insolvency Act makes it clear that
though, upon the order of adjudication being passed, the property
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vests in the Official Assignee, the surplus remaining after the debts of
the creditors have been satisfied would constitute the estate of the
insolvent. As the Official Assignee has not fully administered the
estate of the deceased, the surplus cannot be ascertained as of date.
However, the same does not mean that the Testamentary Petition
cannot be filed for seeking Probate of the Will of the deceased.
35. Under Section 211 of Succession Act, the executor or the
administrator of a deceased person is his legal representative for all
purposes, and all the property of the deceased person vests in him as
such. Under Section 227, the probate of the Will, when granted,
establishes the Will from the death of the testator and renders valid all
intermediate acts of the executor as such. Considering the provisions
of Section 76 of the Insolvency Act, the surplus remaining after
satisfaction of all the debts would constitute the estate of the
deceased in respect of which the executor can apply for probate. It
cannot be accepted that in case of a deceased dying as an
undischarged insolvent, no estate of person exists in law, as the surplus
remaining would constitute the estate of the deceased, which is likely
to come into the hands of its executor. There is no embargo under the
provisions of the Succession Act from seeking probate of the Will of an
undischarged insolvent. Section 276 of the Succession Act provides
that the application for probate shall set out the necessary particulars,
SQ Pathan 24/33
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including the amount of assets which are likely to come into the
petitioner’s hands. In the present case, the amended testamentary
petition sets out that after the debts have been satisfied, the estate
remaining would constitute the asset of the deceased. The
testamentary petition in Schedule of Assets at Exhibit “C-1” sets out
the assets which are likely to come in the hands of the executor. As the
Petitioner can claim succession to the surplus left after the
administration of the debts by the Official Assignee under Section 76
of Insolvency Act, the contention of Mr. Vakil that there should be
existence of property also fails. It is not that there is no estate of the
deceased but by virtue of insolvency, the estate of the deceased vests
in the official assignee. The expression used in Section 276(1)(c) of
Succession Act is “assets likely to come to the petitioner’s hands.” The
surplus remaining upon satisfaction of debts and expenses as per the
Insolvency Act would constitute the assets likely to come to the
petitioner’s hands.
36. The Caveator claims a Caveatable interest by reason of being a
creditor of the deceased. The averments in the Affidavit in support of
Caveat reproduced above indicates that the Caveator questions the
testamentary capacity of the deceased to bequeath the estate. Mr.
Vakil, by questioning the existence of property disputes the right of
the deceased to the estate. In this context, it would be apposite to
SQ Pathan 25/33
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refer to the decision in the case of Purushottam Vishandas Raheja vs.
Asha Shrichand Raheja & Anr. (supra), where the Hon’ble Division
Bench considered the issue of Caveatable interest in respect of Caveat
filed by the brother of the deceased testator. The Hon’ble Division
Bench noted the observations of the Hon’ble Apex Court in Krishna
Kumar Birla (supra) in para 57, 58, 85 to 86, which reads as under:
“57. The 1925 Act in this case has nothing to do with the law of
inheritance or succession which is otherwise governed by statutory
laws or the custom, as the case may be. It makes detailed
provisions as to how and in what manner an application for grant of
probate is to be filed, considered and granted or refused. Rights
and obligations of the parties as also the executors and
administrators appointed by the court are laid down therein.
Removal of the existing executors and administrators and
appointment of subsequent executors are within the exclusive
domain of the court. 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.”
“58. 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. The question with regard to the degree of
interest or the right which a Caveator must show to establish his
or her Caveatable interest before the Probate Court should be
considered having regard to the aforementioned legal
propositions.”
“85. We may, by way of example notice that a testator might have
entered into an agreement of sale entitling the vendee to file a
suit for specific performance of contract. On the basis thereof,
however, a Caveatable interest is not created, as such an
agreement would be binding both on the executor, if the probate
is granted, and on the heirs and legal representatives of the
deceased, if the same is refused.”
SQ Pathan 26/33
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“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 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.”
37. The Hon’ble Division Bench noted in paragraph 16 that the
Hon’ble Apex Court has clearly held that, any person questioning the
existence of title in respect of the estate or the capacity of the testator
to dispose of the property by a Will would be a stranger to the probate
proceedings, inasmuch as such rights cannot be effectively adjudicated
upon in probate proceedings. It held that if a Caveator is objecting to
the grant by disputing the very existence of the estate claimed by the
deceased, he does not have a Caveatable interest. A person will have
Caveatable interest if he is likely to inherit even a very small part of the
estate of the deceased in event Probate or Letters of Administration as
the case may be is not granted. If a Caveator is objecting to the grant
SQ Pathan 27/33
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either by setting up an adverse title in himself or by disputing the very
existence of the estate claimed by the deceased, he does not have
Caveatable interest.
38. In the present case, the Caveator disputes the very existence of
the estate by reason of the insolvency of the deceased as the estate
vests in the official assignee, which makes the Caveator stranger to the
probate proceedings. The interest must be shown in the estate derived
from the deceased by succession or otherwise and the title of the
deceased to the estate cannot be disputed. A careful reading of the
Affidavit in support of Caveat would indicate that the Caveator
disputes the very existence of the estate of the deceased and the
testamentary capacity to bequeath the estate and on this ground alone
the Caveat ought to be dismissed.
39. Testing the argument further, let us consider the effect of
refusal of the grant. The Caveator has lodged his proof of debt with
the Official Assignee, which claim will be adjudicated and satisfied in
those proceedings. Irrespective of the grant being issued or refused,
the Caveator’s debt is not affected as the debt will be satisfied in the
insolvency proceedings. The Probate Court does not venture into the
dispute of title and the only question to be answered is whether the
Will is validly and legally executed and attested as the last Will and
Testament of the deceased. It is well settled that the Probate Court
SQ Pathan 28/33
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will not go into the manner of administration of the estate or even into
the existence of the estate. (See Kanwarjit Singh Dhillon vs Hardyal
Singh Dhillon9). The contention that Caveat has been filed to assert
the Caveator’s right to recover debts is an alien issue in probate
proceedings.
40. The decision of Krishna Kumar Birla (supra) analyzed the
concept of Caveatable interest in light of the statutory provisions and
various judicial pronouncements. Before the Hon’ble Apex Court,
reliance was placed on the decision of Nobeen Chunder Sil vs
Bhobosoonduri Dabee ILR10 to contend that if any person can show
that he is entitled to maintain a suit in respect of the property over
which probate would have effect, he possesses sufficient interest to
enter a Caveat. In Nobeen (supra), the person had obtained money
decree against the testator and his share was under attachment. The
Hon’ble Apex Court in Krishna Kumar Birla (supra) held in paragraph
92, 94 and 95 as under:
“92. In the context of the laws governing inheritance and succession, as
they then stood, the widest possible meaning to the term “interest”
might have been given in a series of decisions to which the learned
counsel for the appellants rely upon ranging from Nobeen Chunder
Sil (supra) to Radharaman Chowdhuri and others vs. Gopal Chandra
Chakravarty [AIR 1920 Calcutta 459] so as to hold that a Caveat would
be maintainable even at the instance of a person who had been able to
establish “some sort of relationship” and howsoever distant he may be
9 2007 11 SCC 357.
10 (1881) 6 Cal 460.
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from the deceased which per se cannot have any application after
coming into force of the Hindu Succession Act. Ordinarily, therefore, a
Caveatable interest would mean an interest in the estate of the
deceased to which the Caveator would otherwise be entitled to, subject
of course, of having a special interest therein.”
“94. A Will is executed when the owner of a property forms an opinion
that his/ her estate should not devolve upon the existing heirs
according to the law governing intestate succession. When, thus, a
person who would have otherwise succeeded to the estate of the
testator, would ordinarily have a Caveatable interest, any other person
must ordinarily show a special interest in the estate.”
“95. Such a special interest may be a creditor of the deceased as was
the case in Sarala Sundari Dassya v. Dinabandhu Roy Brajaraf Saha (Firm)
[AIR 1944 PC 11]. But, in our opinion, the same would not mean that
even if the estate of the deceased is being represented by the legal
heirs, Caveat can be entertained at the instance of a person who has no
real interest therein or in other words would merely have a contingent
interest.”
41. The Hon’ble Apex Court in Krishna Kumar Birla (supra) held in
paragraph 103 and para 111 as under:
103. What would be the Caveatable interest would, thus depend
upon the fact situation obtaining in each case. No hard and fast
rule, as such, can be laid down. We have merely made attempts
to lay down certain broad legal principles.”
“111. While interpreting the provisions of a statute, we must
also bear in mind the admitted legal position that a probate
proceeding should not be permitted to be converted into a title
suit. It should not be permitted to become an unchartered field
to be trespassed into by persons even if he is not affected by
testamentary disposition.”
42. The decision of Sarala Dassya (supra) was rendered in the
context of revocation of probate obtained fraudulently and considered
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the issue of locus of creditor to apply for revocation of Probate. The
consideration differ as revocation can be ordered for just cause.
43. The opposition to the grant should make out a case germane to
the issue of grant. It must be shown that if probate is granted, the
Caveator’s right will be affected which is not so in the present case.
The Caveator’s proof of debt is required to be adjudicated by the
official assignee and the debt will be satisfied in insolvency
proceedings. The estate of the deceased dying as undischarged
insolvent vests in the official assignee and the grant of Probate or
otherwise has zero impact on the Caveator’s right to receive due
payment upon his claim being adjudicated by the official assignee. The
assertion of any right by the Caveator in present proceedings would
convert the testamentary proceeding into a suit for title. A creditor can
be said to have special interest, if it is shown that by grant of probate,
the creditor’s right is impacted. As the debt before Official Assignee is
yet to be adjudicate, even though the Caveator’s father was judgment
creditor, the creditor’s interest would be contingent interest. The
debts would be debt in accordance with the priority of debts under
Section 49 of Insolvency Act.
44. The Petitioner being the legal heir is entitled to seek probate of
the Will of the deceased and cannot be asked to wait till the insolvency
proceedings attain finality and the surplus is ascertained. The
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continuation of the testamentary proceedings will neither have any
impact on the insolvency proceedings nor will affect the right of the
Caveator in insolvency proceedings.
45. Dealing with the challenge to the maintainability of the
testamentary petition, it needs to be noted that there is no application
of the Caveator seeking dismissal of the Petition on the ground of
maintainability. Going a step forward and dealing with the said
contention, the argument is premised on the ground that the
Insolvency Act provides the mechanism to deal with the estate and
assets of the insolvent and in respect of undischarged insolvent the
testamentary jurisdiction cannot be exercised. The said submission
overlooks the primary difference in jurisdictions exercised in
testamentary proceedings and insolvency proceedings. While
exercising testamentary jurisdiction, the Probate Court does not delve
into the issue of title of the asset of the deceased or manner of
administration of the estate or provide for payment of debts or
liabilities and is only concerned with the aspect of validity and
authenticity of the Will. On the other hand, the Insolvency Act provides
the manner in which the estate of an insolvent is to be realised and
applied for satisfaction of the debts. Under Section 227 of Succession
Act, the effect of probate is that when granted establishes the Will
from the death of the testator and renders valid all intermediate acts
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of the executor as such. Under Section 220 the effect of grant of
letters of administration entitles the administrator to all rights
belonging to the intestate as effectually as if the administration had
been granted at the moment after his death. If the deceased is an
undischarged insolvent, the vesting is interdicted by the provisions of
Insolvency Act and the estate vests in the official assignee with the
right restricted to the surplus remaining after the administration of the
estate by the official assignee. As the property vests in the official
assignee under the Insolvency Act, the grant of Probate will not impact
the administration of the estate under the Insolvency Act. In my view,
the maintainability of the Petition seeking grant of probate cannot be
questioned on the ground that the deceased was an undischarged
insolvent.
46. In light of the above discussion, in my view, the Caveator does
not have Caveatable interest and resultantly, the Caveat deserves to be
dismissed. Hence the following order is passed:
(a) Interim Application No 2807 of 2024 seeking condonation of
delay stands rejected.
(b) Interim Application No 2156 of 2023 is allowed. Caveat (L) No
191 of 2018 is rejected.
[SHARMILA U. DESHMUKH, J.]
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