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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
WRIT PETITION NO.1995 of 2010
Group Grampanchayat, Sasavane at
post Kolgaon
versus
Sunanda Shamrao Bandishti & ors.
CORAM : D.G. KARNIK, J.
DATED : 14th July 2010
Citation;2011(5)BomCR162, 2011(2)MhLj424
Rule, returnable forthwith. By consent of the parties, taken 1.
up for hearing.
2.
WP No.1995/10
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.
(D.G. KARNIK,J.)
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