Per LODHA R.M., J.: - On March 3,2005, the learned Testamentary Judge of this Court

ordered issuance of heirship certificate of the deceased William Manual DSouza in favour of Mary Kamala William DSouza (respondent No.1). Aggrieved thereby, the present appellants have preferred this appeal.

2. Aloysius Manuel DSouza - appellant No.1 is the brother of late William Manual DSouza (hereinafter referred to as the "said deceased"). Denzil Alfred DSouza - appellant No.2 is the son of one Ancey DSouza (sister of the said deceased). Julious Machado appellant No.3 is the husband of one Ethel DSouza (sister of the deceased) and Clifford George DSouza - appellant No.4 is the son of Hilda DSouza (sister of the deceased).

3. The appellants have prayed for grant of leave to file the appeal and also for condonation of delay in filing the appeal.

4. Mary Kamala claims to be the widow of the said deceased. She applied for issuance of legal heirship certificate under Bombay Regulation VIII of 1827. Chapter I thereof provides for Rules for the recognition of heirs, executors and administrators when there is a competent claimant while Chapter II provides for the appointment of an Administrator by the Zila Court when there is no heir or executor competent and willing to be placed in possession.

5. We are concerned with Chapter 1. Clauses 1 to 8 thereof read thus:

"1. Whenever a person dies leaving property, whether moveable or immovable, the heir or executor, or legal administrator, may assume the management, or sue for the recovery, of the property, in conformity with the law or usage applicable to the disposal of the said property, without making any previous application to the Court to be formally recognized.

2. First.-But if an heir, executor or administrator is desirous of having his right formally recognized by the Court, for the purpose of rendering it more safe for persons in possession of, or indebted to, the estate to acknowledge and deal with him: the Judge, on application, shall issue a proclamation, in the form contained in Appendix A, inviting all persons who dispute the right of the applicant to appear in the Court within one month from the date of the proclamation and enter their objections, and declaring that, if no sufficient objection is offered, the Judge will proceed to receive proof of the right of the applicant, and, if satisfied, grant him a certificate of heirship, executorships or administratorship.

Second.-[Publication of proclamation] Rep. Act. XII of 1873.

3. If at the expiration of the time mentioned in the proclamation, no sufficient objection has been made, the Court shall forthwith receive such proof as may be offered of the right of the person making the claim, and, if satisfied, shall grant a certificate in the form contained in Appendix B, declaring him the recognized heir, executor or administrator of the deceased.

4. First.-If, before the expiration of the time, any objection is made to the right of the person claiming as heir, executor or administrator, the Judge, on a day to be fixed (of which at least eight days previous notice shall be given to the parties), shall summarily investigate the grounds of the objections on the one hand, and of the right claimed on the other, examining such witnesses or other evidence as may be adduced by the parties, and either grant or refuse a certificate, as the circumstances of the case may require.

Second.-But if from the evidence adduced, it appears that the question at issue between the parties is of a complicated or difficult nature, the Judge may suspend proceedings in the application for a certificate until the question has been tried by a regular suit instituted by one of the parties.

5. Whenever an executor is formally recognised, under the rule contained in section 4, the authenticity of the will, if any, by which he is appointed, shall be proved, and the certificate of executorships shall be endorsed thereon.

6. [Wills and recognitions to be registered.] Rep. , Act XII of 18

Click Here to Read the rest of this document