Caveatable Interest in Probate | Creditor of Deceased Insolvent Cannot Challenge Will Under Succession Act: Bombay HC

The Bombay High Court has clarified that a creditor of a deceased insolvent, even if the debt is adjudicated, lacks a caveatable interest to oppose the grant of probate of the deceased’s will. The judgment underscores the limited jurisdiction of probate courts and reinforces that such proceedings cannot be used to litigate title disputes or enforce debt claims.

Background & Facts

The Dispute

The dispute arises from the estate of Harshad Harilal Choksi, who died on or about 25 February 2010 as an undischarged insolvent. His son, Shaunak Harshad Choksi, filed Testamentary Petition No. 462 of 2018 seeking probate of a will dated 24 April 1997. Ketan Kishoredas Mehta, the legal heir of Kishoredas Mehta - a judgment creditor of the deceased - filed Caveat (L) No. 191 of 2018 opposing the grant, claiming to have a caveatable interest as a creditor’s heir.

Key Facts

• The deceased was adjudicated an insolvent by order dated 16 June 2009 under the Presidency Towns Insolvency Act, 1909.
• Kishoredas Mehta, the creditor, obtained a decree dated 27 June 2006 for Rs. 38,43,422.12 and filed an insolvency petition against the deceased.
• Upon adjudication, all property of the deceased vested in the Official Assignee under Section 70 of the Insolvency Act.
• Kishoredas Mehta filed a proof of claim with the Official Assignee on 15 October 2009, which remained unadjudicated.
• Kishoredas Mehta died in 2011; his legal heir, Ketan Kishoredas Mehta, became the caveator.
• The original testamentary petition did not disclose the deceased’s insolvency status.
• The petition was amended on 18 December 2025 to include details of the insolvency order and the vesting of assets in the Official Assignee.
• Exhibit C listed the deceased’s immovable property valued at Rs. 33,31,92,006.
• Exhibit C-1, introduced via amendment, restricted the claim to the surplus property likely to revert to the executor upon discharge or recall of insolvency under Section 76 of the Insolvency Act.
• The caveator alleged the will was forged, fabricated, and suspicious, and that the deceased lacked testamentary capacity.

Procedural History

• 16 June 2009: Deceased adjudicated insolvent; estate vested in Official Assignee.
• 15 October 2009: Creditor’s proof of claim filed with Official Assignee.
• 25 February 2010: Deceased died as undischarged insolvent.
• 11 January 2018: Testamentary Petition filed without disclosure of insolvency.
• 21 July 2018: Caveat (L) No. 191 of 2018 filed by Ketan Kishoredas Mehta.
• 14 December 2018: Affidavit in support of Caveat filed - 133 days after filing of Caveat.
• 2 August 2022: Prothonotary and Senior Master directed Caveator to register Caveat by 13 September 2022; not complied with.
• 8 November 2022: Interim Application No. 2807 of 2024 filed seeking condonation of delay in filing affidavit.
• 2024: Interim Application No. 2807 of 2024 was numbered in September 2024.
• 2023: Interim Application No. 2156 of 2023 filed seeking dismissal of Caveat.
• 9 March 2026: Judgment reserved.
• 6 April 2026: Judgment pronounced.

The Parties' Positions

For the Petitioner (Shaunak Choksi):

• Argued that the probate petition is maintainable under the Succession Act.
• Contended that the estate of an undischarged insolvent includes the surplus remaining after debt settlement under Section 76 of the Insolvency Act.
• Asserted that the executor, as legal representative under Section 211 of the Succession Act, is entitled to seek probate.
• Stated that the Caveator, as heir of a creditor, has no direct interest in the estate and cannot challenge the validity of the will.
• Relied on Purushottam Vishandas Raheja v. Asha Shrichand Raheja, Krishna Kumar Birla v. Rajendra Singh Lodha, and C.P. Paul v. Hydro Power Constructions.

For the Respondent/Caveator (Ketan Kishoredas Mehta):

• Claimed caveatable interest as legal heir of a decree-holder creditor.
• Argued that the will was forged and the deceased lacked testamentary capacity.
• Contended that the estate ceased to exist upon insolvency adjudication, making probate proceedings invalid.
• Invoked Sections 17, 108 - 111 of the Insolvency Act and Section 273 of the Succession Act.
• Relied on Krishna Kumar Birla v. Rajendra Singh Lodha and Sanwarmal Kejriwal v. Vishwa Co-op. Hsg. Society.

Relief Sought

• Interim Application No. 2807 of 2024: Condonation of 133-day delay in filing affidavit in support of Caveat.
• Interim Application No. 2156 of 2023: Dismissal of Caveat on grounds of non-maintainability and lack of caveatable interest.

The Legal Issue

Does a legal heir of a judgment creditor of a deceased insolvent possess a caveatable interest to oppose the grant of probate of the deceased’s will, where the creditor’s claim remains unadjudicated and the estate has vested in the Official Assignee?

Arguments Presented

For the Petitioner

The petitioner argued that probate proceedings are confined to determining the authenticity of the will and cannot adjudicate title, debt, or insolvency-related claims. The executor, as legal representative under Section 211 of the Indian Succession Act, is entitled to apply for probate even if the deceased died as an undischarged insolvent. The surplus remaining after debt settlement under Section 76 of the Presidency Towns Insolvency Act constitutes the estate available for succession. The caveator’s interest is contingent and indirect; he is not a beneficiary under the will nor a legal heir of the deceased. The caveator’s remedy lies before the Official Assignee, not the Probate Court. The decisions in Purushottam Vishandas Raheja and Krishna Kumar Birla confirm that a creditor’s heir has no standing to challenge probate unless the grant directly defeats his inheritance.

For the Respondent

The caveator contended that the deceased’s estate ceased to exist upon adjudication as insolvent, rendering the probate petition jurisdictionally defective under Section 273 of the Succession Act. He argued that Section 17 of the Insolvency Act bars creditors from initiating proceedings against the insolvent’s property, and that the Official Assignee alone represents the estate. The caveator, as heir of the creditor, was entitled to protect the estate’s integrity and prevent fraudulent probate. He relied on Krishna Kumar Birla to argue that creditors may have special interest, and that the will’s suspicious timing (filed 8 years after death) and suppression of insolvency facts warranted intervention.

The Court's Analysis

The Court undertook a detailed analysis of the statutory framework under the Indian Succession Act, 1925 and the Presidency Towns Insolvency Act, 1909. It emphasized that the jurisdiction of the Probate Court is strictly limited to verifying the due execution and authenticity of the will. It cannot adjudicate questions of title, debt, or insolvency.

"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."

The Court noted that the caveator’s affidavit challenged the very existence of the estate, alleging the deceased lacked testamentary capacity and that the will was forged to defeat creditors. Such allegations, the Court held, are extraneous to probate proceedings and amount to a collateral attack on the estate’s title.

"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 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."

The Court distinguished Krishna Kumar Birla, observing that while the Apex Court recognized a creditor’s special interest in revocation proceedings, it did not extend that to opposition to probate where the creditor’s claim is unadjudicated and the estate is under the Official Assignee’s control. The caveator’s interest was contingent, not vested, and his remedy lay in the insolvency proceedings.

The Court further held that the amendment to the testamentary petition, disclosing the insolvency and limiting the claim to surplus assets under Section 76, cured any prior suppression. The existence of surplus property, even if speculative, satisfies the jurisdictional requirement under Section 276(1)(c) of the Succession Act.

The Court rejected the argument that the Insolvency Act ousts testamentary jurisdiction, noting that both statutes operate in complementary spheres: insolvency governs debt administration; succession governs testamentary disposition of surplus.

The Verdict

The Caveator’s application for condonation of delay (IA 2807 of 2024) was dismissed as barred by limitation under Article 137 of the Limitation Act due to inordinate delay of four years in filing and no explanation offered. The application for dismissal of the Caveat (IA 2156 of 2023) was allowed. Caveat (L) No. 191 of 2018 was dismissed. The Court held that the caveator, as legal heir of a creditor, has no caveatable interest to oppose the grant of probate. The testamentary petition is maintainable, and the Probate Court’s jurisdiction is not ousted by the deceased’s insolvency status.

What This Means For Similar Cases

Caveatable Interest Requires Direct Inheritance

• Practitioners must establish that the caveator stands to inherit under intestacy or a prior will if probate is denied.
• Merely being a creditor or heir of a creditor is insufficient to establish standing.
• Allegations of forgery or lack of testamentary capacity must be tied to the will’s execution, not the estate’s title or insolvency status.

Probate Proceedings Cannot Be Used to Enforce Debts

• Creditors must pursue claims exclusively through the Official Assignee under the Insolvency Act.
• Filing a caveat to delay probate to pressure settlement in insolvency proceedings is impermissible.
• Courts will dismiss such applications as abuse of process.

Disclosure of Insolvency in Probate Petitions Is Mandatory

• Failure to disclose insolvency at the time of filing may lead to allegations of suppression.
• However, amendment to disclose such facts, as done here, cures the defect if done before final hearing.
• The court will not invalidate probate on technical grounds if the substance of disclosure is later provided.

Limitation Applies to Condonation Applications

• Applications for condonation of delay in filing affidavits are subject to three-year limitation under Article 137.
• Delay in filing the condonation application itself must be explained; delay in filing the affidavit alone is not sufficient.
• Inaction for years, even with pending office objections, constitutes negligence and bars relief.