Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Bom) 116

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SHARMILA U.DESHMUKH, J.
Shaunak Harshad Choksi – Petitioner
Versus
Ketan Kishoredas Mehta - Respondent
Interim Application No. 2807 of 2024 (For Condonation of Delay) In Caveat (L) No. 191 of 2018 In Testamentary Petition No.462 Of 2018 With Interim Application No.2156 Of 2023 In Testamentary Petition No.462 Of 2018
Decided On : 06-04-2026

Advocates Appeared:
Mr. Gaurang Mehta a/w Ms. Vidhi Dharia, Ms. Rhea Mehta and Mr. Ameya Mahajan, Mr. Rubin Vakil a/w Ms. Khushboo Chughani i/b Mr. Markand Gandhi.

Creditor of deceased undischarged insolvent lacks caveatable interest in probate; estate vests in Official Assignee, probate applies to surplus post-debts. Unexplained delay in condonation application barred by limitation.

Headnote:(A) Presidency Towns Insolvency Act, 1909 - Sections 17, 68, 70, 76; Indian Succession Act, 1925 - Sections 211, 227, 276(1); Bombay High Court (Original Side) Rules - Rule 402; Limitation Act - Article 137 - Testamentary proceedings - Condonation of delay in filing affidavit in support of caveat - Delay of 133 days projected, but application filed after four years without explanation or prayer for condonation thereof - Barred by three-year limitation; no aid to negligent party intending obstruction - Application dismissed. Caveatable interest - Creditor (or heir) of deceased undischarged insolvent has none, as estate vests in Official Assignee upon adjudication; probate limited to surplus after debt satisfaction - Disputing estate existence or testamentary capacity renders caveator stranger to proceedings - Caveat dismissed. (Paras 7, 11, 30-39, 46)

(B) Probate jurisdiction - Confined to Will genuineness; excludes title disputes, estate administration, debt payment - No bar to probate petition for undischarged insolvent’s Will; assets likely to hands of executor include prospective surplus. (Paras 34-36, 45)

Facts of the case:
Petitioner sought probate of 1997 Will of deceased, undischarged insolvent at death in 2010; initial petition omitted insolvency facts, later amended to claim surplus post-debt satisfaction. Caveator, heir of judgment creditor who initiated insolvency, lodged caveat claiming creditor interest, alleging suppression, suspicious Will, absent estate due to vesting in Official Assignee.

Findings of Court:
Delay condonation application rejected as time-barred and unexplained; caveat lacking caveatable interest, dismissed.

Issues: Whether delay in affidavit and condonation application condoned; whether creditor of undischarged insolvent has caveatable interest opposing probate; maintainability of probate amid insolvency.

Ratio Decidendi: Caveator must show interest prejudiced by probate grant, accepting testator’s estate title; creditor’s remedy lies in insolvency against Official Assignee, unaffected by probate which concerns only surplus validity - Disputing estate existence or capacity extraneous to probate.

Result: Interim application for condonation dismissed; application for caveat dismissal allowed, caveat rejected.

Table of Content
1. condonation sought for 133-day delay in caveat affidavit (Para 1 , 2 , 3)
2. parties argue delay explanation vs. negligence and abandonment (Para 4 , 5)
3. condonation barred by limitation and unexplained inordinate delay (Para 6 , 7 , 8 , 9 , 10 , 11 , 12)
4. testamentary petition for insolvent's will opposed by creditor (Para 13 , 14 , 15)
5. creditor lacks caveatable interest; probate for surplus only (Para 16 , 17 , 18 , 19 , 20 , 21)
6. creditor asserts interest; challenges petition maintainability in insolvency (Para 22 , 23 , 24 , 25 , 26 , 27 , 28)
7. caveator disputes estate existence and testamentary capacity (Para 29 , 30 , 31 , 32)
8. insolvent's surplus vests as estate for probate grant (Para 33 , 34 , 35)
9. no caveatable interest for creditor in probate proceedings (Para 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45)
10. condonation rejected; caveat dismissed for lack of interest (Para 46)

ORDER :

SHARMILA U.DESHMUKH, J.

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 21st 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 dated 27^th June, 2006 against the deceased and had also 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 25^th June, 2018 to 17^th 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 14th 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 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 on8^th November, 2022.

5. Mr. Mehta, lea