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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

TESTAMENTARY AND INTESTATE JURISDICTION

MISC. PETITION NO.65 OF 1998

Mashappa R. Kunchikarve & Ors. ....Petitioners

V/s.

Bharati P. Shah @

Mrs.Bharathi Nawab Rajput

....Respondent

Mr.O.P. Pandey i/b M/s.Pandey & Co. for the

Petitioners.

CORAM : S.J. VAZIFDAR, J.

DATED : 13TH JULY, 2007.

P.C. :

1.

The Petitioners have sought issuance of

heirship certificate under the provisions of the

Bombay Regulation Act, 1827. The Petitioners have

also sought a declaration that the purported heirship

certificate dated 27.11.1995 issued by the Hon’ble

Incharge Principal Judge, City Civil Court, Bombay in

Misc.Petition No.268 of 1995 in favour of the

Respondent is illegal and void and an order

restraining the Respondent from acting on the same.

2.

The Petitioners are nephews of the deceased,

The Respondent, it is alleged, is a stranger to the

family.

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3.

All the procedures and formalities have been

complied with. The proclamation has been issued. No

objections have been received. There is no affidavit

in reply. The said heirship certificate issued by the

Hon’ble Incharge Principal Judge, City Civil Court,

Bombay is void and has no legal effect in view of the

judgment of this Court in In re Anthony Fernandes and

others, 1993(1) Bom.C.R. 580, where it is held as

under :-

"In view of the above discussion, I

summarise my conclusions as under :

(a)

The Bombay Regulation VIII

of 1827 continues to be ‘law in

force’. Provisions contained in the

said regulation are supplemented in

certain respects by the provisions

contained in Indian succession Act,

1925.

(b)

The expression "Zilla Court"

used in Bombay Regulation VIII of

1827 is liable to be equated to the

expression "District Judge" used in

section 2(bb) of the Indian

Succession Act, 1925. The said

expression means "principal Civil

Court of Original Jurisdiction".

Whereever the High Court has

Ordinary Original Civil

Jurisdiction, the High Court is

‘deemed District Court’ for purpose

of exercise of powers under bombay

Regulation VIII of 1827. the Bombay

City Civil Court has no jurisdiction

to grant heirship certificate or

certificate of executorship or

administratorship. The City Civil

Court is not ‘Zilla Court" within

meaning of the said expression as

used in Bombay Regulation VIII of

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1827.

(c)

Paruck’s commentary at page

613 of the Indian Succession Act,

1925 (7th Edition) to the effect

that Bombay Regulation No.VIII of

1827 does not apply to High Court is

erroneous.

(d)

The Prothonotary & Senior

Master is duty bound to entertain

and process the applications for

issue of necessary certificate under

Bombay Regulation No.VIII of 1827

and place the same for orders and

determination of disputes before the

learned Judge taking testamentary

and Intestate matters and need not

entertain any doubt about

maintainability of these

applications in this Court."

4.

In the circumstances,the Petition is made

absolute in terms of prayers (a), (b) and (c).