The only contention which was raised by the petitioner before me was that Radhabai was not the owner of the property but that the petitioner was the owner. Grant of an heirship certificate to the petitioner would affect its rights in the property and therefore it was a person aggrieved having a right to challenge the impugned order. In view of clauses 7 and 8 of the Regulation and the decision of the Division Bench in the case of Aloysius D'Souza (supra) the contention cannot be accepted. The grant of an heirship certificate to the respondents would not in any way affect the right, title or interest, if there be any, of the petitioner in any of the properties of the deceased Radhabai. The petitioner does not claim to be an heir of Radhabai. Consequently, the present petitioner would not be a person aggrieved by any order of grant or refusal of grant of the heirship certificate. As such, the petitioner cannot be a person aggrieved by the order allowing the amendment and would have no right to contest the said order and challenge it by a writ petition.Print Page
Bombay High Court
Group Grampanchayat vs Sunanda Shamrao Bandishti & Ors on 14 July, 2010
Bench: D.G. Karnik
WRIT PETITION NO.1995 of 2010
1. Rule, returnable forthwith. By consent of the parties, taken up for hearing.
2. By this petition, the petitioner challenges the order dated 6 January 2010 passed by the learned Civil Judge, Sr.Division, Baramati allowing the application of the respondents for amendment.
3. Learned counsel for the respondent raises a preliminary objection for maintainability of the writ petition at the instance of the petitioner on the ground that petitioner is not a "person aggrieved" by the impugned order and writ petition at his instance should not be entertained. For deciding the preliminary objection, it is necessary to refer a few facts which is mentioned below.
4. The Respondents filed an application under the Bombay Regulation VIII of 1827 for an heirship certificate as heirs of late Radhabai Damodar Joshi/Bhatt/Tisgaonkar/Newaskar. Radhabai died on 1 January 1990 leaving behind her certain movable and immovable properties including Gat No.145 (Old survey no.46/1).
Since the present petitioner i.e. Group Grampanchayat Sasavane, was not willing to recognise the respondents to be the heirs of Radhabai, the petitioner applied to the court of Civil Judge, Sr.Division, Baramati for an heirship certificate under Bombay Regulation VIII of 1827. In the application for the heirship certificate, the respondents initially gave the description of all properties left behind by Radhabai. Though in my view unnecessary, the respondents joined the State of Maharashtra and the Group Grampanchayat Sasavane, (petitioner herein) as parties to the application for heirship certificate. Later on, the respondents made an application for amendment of their application so as to delete the description of the properties alleged to have been inherited by them from Radhabai and addition of the following prayer:
"The heirship certificate may kindly be granted in favour of the present applicants (respondents in the writ petition) thereby declaring them to be the sole legal heirs of deceased Radhabai Damodar Joshi"
By an order dated 6 January 2010, the application was allowed.
That order is impugned in this petition.
5. Bombay Regulation VIII of 1827 (for short " the Regulation") was issued on 1 January 1827 to provide for formal recognition, of heirs, executors and administrators and for appointment of administrator and managers of the property by the Courts.
Preamble to the Regulation reads:
"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 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 of acknowledge and deal with them, should obtain a certificate of heirship, executorship, or administratorship, from the Zila Court;
And whereas, whenever there is no person on the spot entitled or willing to take charge of the property of a person deceased, or when the right of succession is disputed between two or more claimants, none of whom has taken possession or where the heirs are incompetent to the management of their affairs and have no near relations entitled and willing to take charge on their behalf, or where a person possessed of property dies intestate and without known heirs, it is essential that the Zila Court should appoint an administrator for the management of the estate; the following rules are therefore enacted"
In Re Anthony Fernandez and others, 1993(1) Bom.C.R. 580 this Court has held that Bombay Regulation VIII of 1827 continues to be in force and the provisions thereof are supplemented in certain respects by the Indian Succession Act, 1925. Consequently, an application for recognition of a person as an heir of the deceased can be made under the Regulation. The present application was so made. Clauses 7 and 8 of the Regulation are material and reads thus:-
7. First : Recognized heirs, etc., competent to manage property:
An heir, executor or administrator, holding the proper certificate, may do all acts and grant all deeds competent to a legal heir, executor or administrator, and may sue and obtain judgment in any Court in that capacity.
Second : But recognition gives no title to property:
But, as the certificate confers no right to the property, but only indicates the person who, for the time being, is in the legal management thereof, the granting of such certificate shall not finally determine nor injure the rights of any person; and the certificate shall be annulled by the Zila Court, upon proof that another person has a preferable right.
Third : No relief from responsibility to claimants:
An heir, executor or administrator, holding a certificate, shall be accountable for his acts done in that capacity to all persons having an interest in the property, in the same manner as if no certificate has been granted.
8. Refusal of a recognition no judgment against claim of applicant:
The refusal of a certificate by the Judge shall not finally determine the rights of the person whose application is refused, but it shall still be competent to him to institute a suit for the purpose of establishing his claim."
6. Interpreting the Regulation, in Aloysius Manuel D'souza & ors. Vs. Mary Kamala William Manuel D'souza, 2006(6) Bom.C.R.
56, a Division Bench of this Court has held that the grant of heirship certificate does not establish the right of a party in property of the deceased by itself. The right, if any, of a person claiming ownership in the property of the deceased are not taken away by grant of an heirship certificate to an heir. On the other hand, clause 7 makes it clear that heirship certificate holder is accountable to all persons having an interest in the property for the acts done by him. Based on the heirship certificate simplicitor the heirship certificate holder cannot be said to have acquired any right, title or interest in the estate of the deceased.
7. The only contention which was raised by the petitioner before me was that Radhabai was not the owner of the property but that the petitioner was the owner. Grant of an heirship certificate to the petitioner would affect its rights in the property and therefore it was a person aggrieved having a right to challenge the impugned order. In view of clauses 7 and 8 of the Regulation and the decision of the Division Bench in the case of Aloysius D'Souza (supra) the contention cannot be accepted. The grant of an heirship certificate to the respondents would not in any way affect the right, title or interest, if there be any, of the petitioner in any of the properties of the deceased Radhabai. The petitioner does not claim to be an heir of Radhabai. Consequently, the present petitioner would not be a person aggrieved by any order of grant or refusal of grant of the heirship certificate. As such, the petitioner cannot be a person aggrieved by the order allowing the amendment and would have no right to contest the said order and challenge it by a writ petition.
8. Learned counsel for the petitioner submitted that respondents themselves had joined the petitioner as a party to the original application heirship certificate and being a party they have a right to challenge the impugned order. In my view, the petitioner was not at all a necessary, not even a proper party to the application made by the respondents for the heirship certificate. In a proceedings for heirship certificate, the Court is not required to determine title of the deceased to any property. It is required only to consider whether the persons claiming heirship certificate are the heirs of the deceased. If any person comes forward to claim nearer kinship than the applicants, the rival claims for the applicant and the person claiming nearer kinship and to be an heir would be considered by the Court. The Court may decline to grant heirship certificate to any applicant and come to the conclusion that the applicant is not an heir of the deceased or that there are nearer kins who are entitled to the heirship certificate. The question of title to the property allegedly held by the deceased is alien to such enquiry. Whether the deceased had any title to the property is not and indeed cannot be decided by the Court in an application for an heirship certificate made under the Regulation.
9. The preliminary objection raised by the respondent for the maintainability of the writ petition at the instance of the present petitioner is upheld. The present petitioner not being a person aggrieved and being not a necessary party to the original heirship application itself is not entitled to challenge the impugned order.
It must also be mentioned that since the petitioner is not a necessary party to the application, the trial Court may on its own consider striking off the name of the petitioner no.2 from the heirship application in exercise of its powers under Order 1 Rule 10(2), if the respondents do not apply for such deletion.
10. For these reasons the Writ Petition is dismissed. Rule discharged with no order as to costs.