Thursday, 13 August 2015

Whether application for legal heirs under bombay Regulation Act becomes barred by limitation?

 I am in respectful agreement with the view expressed in the
decisions cited. Though the decisions relate to petitions for probate,
letters of administration and succession certificate, the proposition of
law expounded therein would be equally, if not more, relevant to an
application for heirship certificate. Such an application is also to “seek
the Courts imprimatur for recognition as an heir”. Therefore, the right to
apply for heirship certificate is also a continuous right which is capable of
being exercised as long as object of the right as an heir exists. The right
to apply for heirship can, therefore, be exercised at any time after the
death of the deceased as long as the right to do so exists. In the

circumstances, the trial Court was not correct in its finding that the
application filed by the petitioner was barred by limitation.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2177 OF 2014
Against order of Civil Judge Senior
Division at Kalyan dated 29.07.13 on
application under Rule 2 of Bombay
Regulation Act.
Shri. Ganpati Vinayak Achwal
Aged 85 years, Through duly
Constituted Attorney
Shri. Madan Ganpati Achwal
Both resident of 105, A wing
Achwal Niwas, Bajarpeth, Kalyan
District-Thane …..Petitioner
(Sole petitioner in original
proceedings)

Coram :- Smt. R.P. SondurBaldota, J.
21st August, 2014
Citation; 2015(2) ALLMR285 Bom

1). The petitioner had applied for heirship certificate under Rule-2 of
the Bombay Regulation Act in respect of his father and his two uncles
who had died Bachelors. All the three brothers have left immovable
properties at Ambernath, Thane. The death of the father had taken place

on 25th September, 1968 and the death of the uncles had taken place on
20th November, 1985 and 13th July, 1990.
2). The application had been filed by the petitioner through his
son and Constituted Attorney. As per the prescribed procedure, citation
and public notices were issued for calling objections from the public at
large. No objection was received from anybody to resist the application.
Despite the fact, the trial Court i.e. the Court of Civil Judge Senior
Division, Kalyan rejected the application on two grounds. The first
ground was bar of limitation under Article 137 of the Limitation Act and
the second ground was physical incapacity of the petitioner to manage
the properties. Being aggrieved by the decision of the trial Court, the
petitioner has invoked extra-ordinary jurisdiction of this Court under
Article 227 of the Constitution of India.
3). Mr. Badgujar, the learned Advocate for the petitioner,
submits that the learned Trial Court Judge had completely misdirected
himself as regards the purpose of heirship certificate. He further submits
that considering the nature of the certificate and its purpose, neither the
bar under Article 137 of the Limitation Act is attracted to it, nor the
health of the petitioner can be considered for grant of the certificate. Mr.
Badgujar, refers to the provisions of the Bombay Regulation Act, 1827
(“the Regulation” for short) to point out that, the purpose of issuance of
heirship certificate thereunder is only to provide formal recognition to

the heirs and as such the right to apply for heirship certificate would be a
continuous right, which is capable of being exercised as long as the object
of the application exists.
4). The object of the Regulation, it's first recital and Rules 1 to 3
of it's Chapter-I, which are relevant for the present purposes, read as
follows :-
“A Regulation to provide for the formal recognition of heirs,
executors and administrators and for the appointment of
administrators and managers of property by the Courts.
WHEREAS, at the same time that it is in general desirable that
the heirs, executors or legal administrators of persons deceased
should, unless their right is disputed, be allowed to assume the
management or sue for the recovery for property belonging to
the estate, without the interference of Courts of justice, it is yet
in some cases necessary or convenient that such heirs,
executors or administrators, in order to give confidence to
persons in possession of, or indebted to, the estate to
acknowledge and deal with them, should obtain a certificate of
heirship, executorship, or administratorship, from the Zila
Court.”
CHAPTER I
“Rules for the Recognition of Heirs, Executors and
Administrators when there is a Competent Claimant
1. Legal heir, etc., of person deceased competent
to represent him without recognition from court :
Whenever a person dies leaving property, whether movable 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 recognised.

2. First. But if such recognition requested,
proclamation will be issued :
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, executorship or
administratorship.
Second. Publication of proclamation :
[Re.Act XII of 1873]
3. If no objection appears, recognition to be
granted :
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.”
5). The position of law that emerges from the above provisions
is that, an heirship certificate does not bestow the status of an heir upon
a person. Grant of such a certificate is only a formal recognition of his
existing status as an heir. An heir or executor or legal administrator, by
his such status, can assume management of the property of the deceased
even without a formal recognition by the Court. A person may obtain
heirship certificate is any of the three situations i.e. (i) if he so desires
(ii) where his right as an heir is disputed, and (iii) in order to give

confidence to the persons in possession of or indebted to the estate and
to deal with them. Thus grant of heirship certificate is solely, for the
convenience of the heir. Beyond that, it is of no significance. The rules
also indicate that, it is mandatory for the Court to issue an heirship
certificate, if after publication of citation, no objector comes forward
within one month from the date of publication. In that case, 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
prescribed form declaring him the recognized heir of the deceased. The
scope of such enquiry is limited to ascertain the claim of heirship of the
applicant. The petitioner's claim and the impugned order are required
to be appreciated against the above legal position.
6). In view of the above legal position, I find that Mr. Badgujar
is right in his submission that, the trial Court lost sight of the fact of the
purpose of obtaining heirship certificate. It is not for management of the
property as already noted above. It is essentially a formal recognition of
status of a person. Therefore, physical health or strength of the
petitioner was not a factor relevant to be taken into consideration for
grant or refusal of the heirship certificate. The only relevant
consideration was, whether the applicant establishes that he is the heir
of a person in respect of whom, he seeks heirship certificate. If no
objector comes forward as provided by Rule-3 of Chapter-I of the

Regulation, the Court must grant certificate to the applicant. This view
is fortified by the decision of Single Judge of this Court, relied upon by
Mr. Badgujar. By the judgment and order dated 16th March, 2011 passed
in Writ Petition No. 302 of 2011 by Nagpur Bench of our High Court in
the case of Vilas Sadanand Sapre (Mentally Challenged) through
Guardian Sister Sau. Anuradha Dhananjay Bhate and anr. Versus.
The Civil Judge, Senior Divison, Amravati. The petitioner in that case
was denied heirship certificate on the ground that, he was mentally
challenged. The trial Court had held that, unless the next friend and
guardian, who had filed the application was appointed as an “Guardian”
through the court of competent jurisdiction under the provisions of the
Mental Health Act, she could not act on behalf of the petitioner and file
application. This Court, looking into the purpose of issuance of issuance
of heirship certificate under the Regulations held that, for considering
such an application, the Court is not required to determine the title of
the deceased or the persons claiming heirship certificate to any property.
The Court is only required to consider whether the persons claiming
heirship certificate is the heir of the deceased.
7). In the case on hand, nobody had come forward to object to
the grant of heirship certificate. Thus, there was no challenge to the
claim of heirship. Further, there is nothing on record, as also, in the
impugned order to suggest that there is no proof of the right claimed by

the petitioner. In the circumstances, it was incumbent upon the trial
Court to issue the heirship certificate.
8). As regards the applicability of Section 137 of the Limitation
Act to the petitioners application, Mr. Badgujar relying upon the
decision of this Court in the case of Vasudev Daulataram Sadarangani
Vs. Sajni Prem Lalwani reported in 1984 (1) BCR page 211, and the
decision of the Madras High Court in the case of S. Krishnaswami, E.
Devarajan Versus. E. Ramiah, reported in 1991 AIR (MAD) page
214, submits that the right being a continuous right, it does not get
barred by the law of limitation.
9). In the case of Vasudev Daulatram (supra), the petitioner
had sought Letters of Administration with the Will of his father
annexed. The same was objected to by the petitioner's sister and one of
the grounds taken up by the sister was that the suit for Letters of
Administration was barred by the law of limitation. While rejecting the
contention our High Court observed as follows :-
“. Under the Limitation Act, no period is advisedly prescribed
within which a petition for probate or letters of administration
or succession certificate must be made after the deceased's
death. There is no warrant for the assumption that the right to
apply envisaged in Article 137 necessarily accrues on the date of
the death of the deceased. Such an application is to seek the
Court's imprimatur to perform a duty created by a Will or for
recognition as a testamentary trustee. The right to apply is a
continuous right which is capable of being exercised as long as
the object of the trust exists or any part of the trust, if created,
remains to be executed (Gananamuthu Upadesh v. Vana

Koilpillai Nadan) 5, I.L.R. 17 Madras 379, 381. Being a
continuous right, it can be exercised at any time after the death
of the deceased, as long as the right to do so exists. The right to
apply may, therefore, accrue not necessarily within 3 years from
the date of the deceased's death but when it becomes necessary
to apply, which may be any time after the death of the deceased,
be it after several years.”
10). Identical view has been taken by the Madras High Court in
S. Krishnaswami's case (supra) by holding that Article 137 of the
Limitation Act, would not apply to proceedings filed for grant of probate
or Letters of Administration with or without Will annexed, as the right
to apply is a recurring one. Considering the nature of the proceedings,
it further held that, such applications only seek recognition of the Court
to perform duties and the proceedings filed for grant of probate or
Letters of Administration is not an action in law.
11). I am in respectful agreement with the view expressed in the
decisions cited. Though the decisions relate to petitions for probate,
letters of administration and succession certificate, the proposition of
law expounded therein would be equally, if not more, relevant to an
application for heirship certificate. Such an application is also to “seek
the Courts imprimatur for recognition as an heir”. Therefore, the right to
apply for heirship certificate is also a continuous right which is capable of
being exercised as long as object of the right as an heir exists. The right
to apply for heirship can, therefore, be exercised at any time after the
death of the deceased as long as the right to do so exists. In the

circumstances, the trial Court was not correct in its finding that the
application filed by the petitioner was barred by limitation.
12). For the above reasons, the petition is allowed in terms of
prayer clauses (a) and (b). The matter is remanded to the trial Court for
issuance of heirship certificate.
 (SMT. R.P. SONDURBALDOTA, J) 
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