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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
MANISH PITALE, J.
PARVATABAI @ BEBY W - Appellant
Versus
SUREKHA @ REKHA W - Respondent
Writ Petition No. 5447 of 2018
Decided on : 13-02-2019
Indian Succession Act, 1925 - Section 383 - Civil Procedure Code, 1908 - Sub-section (1) - Granted legal heir ship certificate – Claim of compensation - Whether application filed by respondent under aforesaid Regulation for grant of legal heir ship certificate was maintainable in light of such a certificate granted in favor of petitioners by judgment and order passed by Court of Civil Judge Senior Division - Whether in such an application filed under aforesaid Regulation for grant of legal heir ship certificate respondent could claim that by implication it had to be inferred that she was challenging legal heir ship certificate granted to petitioners - Facts leading to filing of present writ petition are that petitioners had filed an application for grant of legal heir ship certificate under Bombay Regulation - Said application was granted by Court of Civil Judge Junior Division by judgment and order - An application was filed by respondent under very same Regulation for grant of legal heir ship certificate wherein petitioners were made parties as non-applicants - Respondent specifically described certain properties in said application and a declaration was sought to effect that respondent was legal heir of deceased More - It is not in dispute that legal heir ship certificate already granted in favor of petitioners also pertained to the said deceased More - Petitioners appeared in said subsequent proceedings initiated by respondent and filed an application for dismissal of proceedings which was marked as Exhibit-18 - It was contended in said application on behalf of petitioners that since they had been granted legal heir ship certificate by order passed by Court of Joint Civil Judge Junior Division application filed by respondent was not maintainable - By impugned order Trial Court in present case had rejected said application holding that there was a possibility that petitioners had obtained legal heir ship certificate in their favor by suppressing material facts – Held, Learned counsel appearing for respondent also referred to section 384 of said Act which pertains to appeal and he submitted that an appeal would lie even against an order refusing or revoking a certificate under this act and on that basis contended that as long as respondent in present case could demonstrate that petitioners had obtained certificate in their favor by suppressing material facts an application in nature filed by respondent was clearly maintainable - Said contention is also without any substance because section 384 of Act is concerned only with aspect of filing of an appeal by a person aggrieved when either grant of certificate is refused or it is revoked under Part X of aforesaid Act - In present case there is no question of Court going into issue of either granting or refusing legal heirs/succession certificate to respondent in face of legal heir ship certificate already granted to petitioners which is admittedly in force even today – Therefore only remedy available to respondent would be either to file a suit under section 387 or an application for revocation under section 383 of Act of 1925 or an application for annulment of certificate under clause 7 second of said Regulation - Remedy of filing appropriate suit before Civil Court is of course available to aggrieved party in such facts and circumstances - It is evident that impugned order passed in present case was not based on proper appreciation of relevant provisions of law - Insofar as judgment relied upon by learned counsel for respondent in case is concerned a perusal of the said case shows that a suit for declaration had been filed in respect of succession certificate with which plaintiff was aggrieved - There is no quarrel with proposition that under section 387 of Act of 1925 an aggrieved party can certainly file a suit claiming aforesaid relief – Therefore said judgment would not be helpful to case of respondent - As regards judgments relied upon by learned counsel appearing for petitioners said judgments reiterate scheme envisaged in Part X of aforesaid Act which is also evident from a bare reading of provisions contained in said Part – Therefore specific reference to said judgments would not be necessary - This Court finds that impugned order by Court below is unsustainable - Writ petition is allowed
MANISH PITALE, J.
1. Heard.
2. Rule. Rule made returnable forthwith. The writ petition is heard finally with the consent of the learned counsel for the parties.
3. By this writ petition, the petitioner has challenged order dated 18/06/2018 passed by the Court of 11th Joint Civil Judge Senior Division, Nagpur (Trial Court) in M.J.C. No.192 of 2017, whereby application filed by the petitioners below Exhibit18 for dismissal of the proceedings initiated by the respondent herein, was rejected.
4. The facts leading to filing of the present writ petition are that the petitioners had filed an application for grant of legal heirship certificate under Bombay Regulation VIII of 1827 (hereinafter referred to "Regulation"). The said application was granted by the Court of Civil Judge, Junior Division, Nagpur by judgment and order dated 13/06/2017. An application was filed by the respondent on 02/03/2017 under the very same Regulation for grant of legal heirship certificate wherein the petitioners were made parties as non-applicants. The respondent specifically described certain properties in the said application and a declaration was sought to the effect that the respondent was legal heir of deceased Parasram Fakira More. It is not in dispute that the legal heirship certificate already granted in favour of the petitioners also pertained to the said deceased Parasram Fakira More.
5. The petitioners appeared in the said subsequent proceedings initiated by the respondent and filed an application for dismissal of the proceedings, which was marked as Exhibit-18. It was contended in the said application on behalf of the petitioners that since they had been granted legal heirship certificate by order dated 13/06/2017 passed by the Court of Joint Civil Judge Junior Division, Nagpur, the application filed by the respondent was not maintainable. By impugned order dated 18/06/2018, the Trial Court in the present case had rejected the said application holding that there was a possibility that the petitioners had obtained the legal heirship certificate in their favour by suppressing material facts.
6. The said order has been challenged in the present writ petition wherein Mr. Sahil Dewani, learned counsel appearing for the petitioners contended that the subsequent application filed by the respondent was not maintainable under the aforesaid Regulation as also under the provisions of the Indian Succession Act, 1925 (hereinafter referred to as "Act of 1925"). It was pointed out that in the Act of 1925, particularly as per section 390 thereof, the certificate issued under the aforesaid Regulation would be subject to the provisions of the Act of 1925 and on this basis, it was submitted that the respondent ought to have either invoked the relevant provision of the aforesaid Regulation or the Act of 1925, in order to seek revocation of the certificate granted in favour of the petitioners. It was submitted that in the absence of seeking revocation of the certificate already granted in favour of petitioners, the application filed by the respondent under the provisions of the said Regulation was not maintainable. It was submitted that section 383 of the Act of 1925 provides for revocation of certificate while clause 7 (second) of the said Regulation provides for annulment of the certificate granted in favour of the respondent and that having failed to approach the Competent Court under either of the provisions, the respondent could not have filed the said application for grant of legal heirship certificate. The learned counsel also referred to section 387 of the Act of 1925 to contend that the legal heirship certificate granted in favour of the petitioners could certainly be challenged by the respondent by instituting appropriate proceedings before the Civil Court. In these circumstances, according to the learned counsel, the Trial Court erred in rejecti
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