(1) 48wp3531.22

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

WRIT PETITION NO. 3531 OF 2022

Chandrabhaga Ramesh Sangale and anr__ Vs. ___Varsha Sunil Sangale and anr

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Office Notes, Office Memoranda of Coram,

Court's or Judge's orders

appearances, Court's orders of directions

and Registrar's orders

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Mr. P.A.Deshpande, Advocate h/f Mr. D.R.Khpare, Advocate for petitioners

Mr. K.S.Narade, Advocate for respondent Nos. 1 and 2

CORAM :

AVINASH G. GHAROTE, J.

DATE : 10/11/2022

1]

Heard Mr. Deshpande, learned counsel for

the petitioner and Mr. Narwade, learned counsel for the

respondents.

2]

The petition challenges the rejection of the

application under Section 10 of the CPC filed by the

present petitioners in proceedings instituted under the

Bombay Regulation VIII of 1927 by the Respondent

Nos.1 & 2 for grant of legal heirship certificate, on the

ground that the mother of the deceased who is the

petitioner no.1 herein along with the father had also filed

proceedings under Section 372 of the Indian Succession

Act for a succession certificate by virtue of Civil Misc.

Application No. 81/2021 before the learned CJJD, Lonar

and therefore, the earlier proceedings instituted under

the Bombay Regulation need to be stayed.

(2) 48wp3531.22

3]

Mr. Deshpande, learned counsel for the

petitioners submits that since the later proceedings under

section 372 of the Succession Act contemplates grant of a

succession certification, even on a prima facie basis, the

earlier proceedings under the Bombay Regulation need to

be stayed, as there was a dispute and in case of disputed

question, the Court entertaining the proceedings under

the Bombay Regulation was enjoined to stay its hands.

4]

In so far as proceedings under the Bombay

Regulation VIII of 1827 are concerned, these are

summary in nature and are intended for formal

recognition of the heirs of the person who died leaving

properties, movable or immovable. The first part of

Rule 4 of the Regulation indicates that the Court under

the Bombay Regulation shall summarily investigate the

grounds of the objections on the one hand, and of the

right claimed on the other and examine such witnesses or

other evidence as adduced by the parties and grant or

refuse a certificate, as the circumstances of the case may

require. The second part of Rule 4 confers a discretion

upon the Court to suspend the proceedings in case from

the evidence adduced it appears to the Court that the

question at issue is a complicated or difficult nature, till

such question has been tried by a regular suit instituted

by one of the parties. Rule 8 makes it further clear that

refusal of the certificate under the Bombay Regulation

shall not finally determine the rights of the persons

(3) 48wp3531.22

whose application is refused, but it shall be competent to

him to institute a suit for the purpose of establishing his

claim.

5]

As against the above, Section 372 of the

Indian Succession Act permits the issuance of a

certificate to an applicant therein in respect of the debts

and securities applied for; Section 373 describes the

procedure for determining such proceedings to be

decided in a summary manner and sub-section (3) of

Section 373 provides that if the judge cannot decide the

right to the certificate without determining questions of

law or fact which seem to be too intricate and difficult

for determination in a summary proceeding, he may

nevertheless grant a certificate to the applicant if he

appears to be a person having prima facie the best title

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