47-WP-7503-2022.docx

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.7503 OF 2022

Bharat Balarm Thakur

….. Petitioner

Vs.

Mr. Pradip Ambaji Gharat Alias

and Ors.

….Respondents

Mr. Harshad Inamdar i/by Mr. Yogesh B. Dandekar for the

Petitioner.

Mr. N.V.Walawalkar, Senior Advocate with Mr. Jeetendra Sachdev

i/by S.M.Sabrad for Respondents.

CORAM:

SANDEEP K. SHINDE, J.

DATED :

AUGUST 22, 2022

ORAL ORDER:

1.

On 9^th September, 2020, Petitioner 昀椀led an application

under Section 2(First) of the Bombay Regulation VIII Act of 1827

(‘Regulation’ for short) for grant of certi昀椀cate of heir-ship to

administer and deal with the estate of the deceased, Balaram

Dharma Thakur (Deceased) being Miscellaneous Application

No.441 of 2020, in the Court of Civil Judge, Senior Division,

Panvel.

.

Upon issuing proclamation in the form contained in

Appendix “A” by the learned Judge, on 15^th January, 2021,

respondents enter their objection, to grant of heir-ship.

Shivgan

1/11

SHAMBHAVI

NILESH

SHIVGAN

Digitally

signed by

SHAMBHAVI

NILESH

SHIVGAN

Date:

2022.08.24

11:32:38

+0530

47-WP-7503-2022.docx

2

On 10^th December, 2020, Respondent No.9- Bhagwan

Balaram Thakur (Respondent No.7) herein, 昀椀led Civil

Miscellaneous Application No.811 of 2020 under Section 276 of

the Indian Succession Act, 1925 in the Court of Civil Judge, Senior

Division, Panvel for grant of probate of the will dated 19^th March,

2018 executed, by late Balaram Dharma Thakur (deceased).

3

Having noted the application for grant of probate, on

12^th March, 2021, Petitioner moved an application below Exhibit

22 contending that since his application for grant of certi昀椀cate of

heir-ship has been objected to by the respondents, his Civil

Miscellaneous Application No.441 of 2020 be converted and tried

as a suit.

4

Anyhow, on 26^th November, 2021, Petitioner moved

the Court of Civil Judge, Senior Division, Panvel with the prayer

that Miscellaneous Civil Application No.441 of 2020 (for

certi昀椀cate of heir-ship) and Miscellaneous Application No.811 of

2020 (for grant of probate of deceased) be clubbed and tried,

together.

Shivgan

2/11

47-WP-7503-2022.docx

5

The learned Judge vide order dated 8^th October, 2021

directed to decide both the applications, preferably within six

months.

6

It appears from the proceedings that the Petitioner’s

application seeking to try Civil Miscellaneous Application No.441

of 2020 as Suit, was rejected by the learned Trial Court vide

order dated 21^st April, 2022 and thereafter proceeded to frame

the following issues on 3^rd March, 2022;

“1]

Whether the deceased Balaram Dharma Thakur

executed the Will Deed dated 19/03/2018 in favour of

Bhagvan Balaram Thakur ?

2]

Whether the Bhagvan Balaram Thakur is

entitled for the probate certi昀椀cate as prayed ?

3]

Whether Bharat Balaram Thakur is entitled for

heirship certi昀椀cate as prayed ?

4]

What order and decree ?”

7

Feeling aggrieved by the order dated 21^st April, 2022,

inter-alia, refusing to convert Civil Miscellaneous Application

No.811 of 2020 into the civil suit, Petitioner has 昀椀led this Petition

under Article 227 of the Constitution of India.

8

Heard Mr. Inamdar, learned counsel for the Petitioner,

Mr. N.V.Walawalkar, learned Senior Counsel for the Respondents.

Shivgan

3/11

47-WP-7503-2022.docx

9

Bombay Regulation VIII of 1827 is a Regulation to

provide for the formal recognition of heirs, executors and

administrators, and for appointment of administrators and

managers of the property by the Courts. Whenever a person

dies, leaving property, whether movable or immovable, the heir

or executor, may assume the management, or sue for the

recovery, of the property, in conformity with the law of usage

applicable to the disposal of the said property without making

any previous application to the Court to be formally recognized.

However, if a heir desirous of having his right