Saturday, 13 March 2021

When the court should allow the co-applicant in the application for legal heirs certificate as an objector?

 A perusal of the relevant provisions of the Regulation

would show that the Preamble itself provides that it is in general

desirable that heirs, executors or legal administrators of persons

deceased should, unless their right is disputed, be allowed to

assume the management of the estate of the deceased. The words

“unless their right is disputed” are crucial, particularly in the

peculiar facts and circumstances of the present case.{Para 16}

17. Clause 4 of the Regulation is also significant because it

mandates that the Court shall summarily investigate the grounds

of objection on the one hand and the right of claimants on the

other hand before issuing legal heirship certificate. The said clause

further specifically mandates that if the Court comes to a

conclusion that the question at issue between the parties is of a

complicated or difficult nature, the Court can suspend the

proceedings until the said question is put at rest by way of a

regular suit instituted by one of the parties.

18. In the present case, the facts and circumstances are such

that the respondents are seeking to deprive the petitioner, who is

admittedly the mother of the deceased Mahesh, to even raise a

dispute in terms of the provisions of the aforesaid Regulation. All

that the petitioner desires by way of being transposed is to have

an opportunity to dispute the claim made by the respondents on

the basis of the said purported Will, in view of the amended

application now pending consideration before the Court below.

There cannot be any dispute about the general propositions

discussed by the Court below in the impugned order that the

proceedings under the said Regulation are necessarily summary in nature and that finality of rights of the disputing parties would be achieved only after appropriate proceedings are instituted and

culminate before the competent Civil Court. But, in the facts and

circumstances of the present case, the question that was required

to be considered by the Court below was, as to whether the

petitioner could be deprived of her right to raise an objection to

the exclusive right sought to be claimed by the respondents on the basis of the amended application. This is particularly because, in the first place, while filing the original application, the respondents did not join the petitioner as a non-applicant and even more significantly they did not even mention existence of the

purported Will dated 15/09/2012, said to have been executed by

deceased Mahesh in their favour. Thus, in the facts and

circumstances of the present case, this Court has come to the

conclusion that from the very beginning the respondents have

been making attempts to deprive the petitioner of her basic right

of even disputing the claims made by them insofar as grant of

legal heirship certificate is concerned. Attempts have been made

to nip in the bud, the right of the petitioner to raise her claim.

Whether the Court below finally accepts the claim of the petitioner or not is a different matter, but she cannot be deprived of her right to raise objection to the manner in which the respondents have sought relief from the Court below under the provisions of the said Regulation.

19. In view of the above, it is found that the impugned order

is wholly unsustainable. Accordingly, the writ petition is allowed.

The impugned order is quashed and set aside. The application

filed by the petitioner at Exhibit-23 is allowed in terms of the

prayer made therein. Consequently, the application pending before the Court below shall stand amended by transposing the petitioner as objector. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO. 2601 OF 2019

 Vijayabai Yugraj Rupareliya  Vs  Chaya Wd/o Mahesh Rupareliya, 

CORAM : MANISH PITALE, J.

DATE : 05.02.2020


Heard.

2. Rule. Rule made returnable forthwith. The writ petition

is heard finally with the consent of the learned counsel for the

parties.

3. By this writ petition, the petitioner has challenged order

dated 11/03/2019 passed by the Court of Civil Judge, Junior

Division, Chikhali, District Buldhana (herein after referred to as

“Court below”) in Succession Case No.1 of 2018, whereby

application filed on her behalf for being transposed as an objector

in the proceedings, stood rejected.

4. One Mahesh Yuvraj Rupareliya expired on 25/04/2017.

The present petition concerns the petitioner and the respondents

herein raising their competing claims for being issued a legal

heirship certificate under the Bombay Regulation VIII of 1827

(hereinafter referred as “Regulation”). It is undisputed that the

petitioner is the mother of the deceased Mahesh and the

respondents are the widow and children. The said deceased was a

resident of Chikhali and he had a licence in his name for running a

restaurant and bar. The respondents herein filed an application

on 19/01/2018 before the aforesaid Court under the provisions of

the said Regulation for grant of legal heirship certificate. The nonapplicant

in the said application filed on behalf of the respondents

was shown as nil. On 20/02/2018, the petitioner filed an

objection in the said application, seeking dismissal of the same on

the ground that the applicants could not have moved such an

application behind the back of the petitioner, who is the mother of

the said deceased Mahesh. The said objection was opposed on

behalf of the respondents. By order dated 18/09/2018, the Court

allowed the application, specifically observing that the objection

raised by the objector (petitioner herein) seems to be just and

proper. Yet, the Court came to the conclusion that even if the

petitioner had prayed for rejection of the application filed by the

respondents, in the facts and circumstances of the case, it would

be just and proper to direct the respondents to add the petitioner

as one of the applicants in the original application for grant of

legal heirship certificate instead of dismissing the application.

Accordingly, the petitioner was added as a co-applicant along with

the respondents herein for grant of legal heirship certificate.

5. The dispute did not end at this stage, because during the

pendency of the objection filed by the petitioner, on 18/04/2018,

the respondents had moved an application for amendment of the

original application for grant of legal heirship certificate. It is in

this application for amendment that for the first time, the

respondents claimed that a Will dated 15/09/2012 had been

executed by deceased Mahesh, whereby he had bequeathed his

right, title and interests exclusively in favour of the respondents

herein. It was during the pendency of this application for

amendment that the Court below had passed the order dated

18/09/2018, directing the petitioner to be added as a co-applicant

along with the respondents.

6. On 20/10/2018, the said application for amendment

stood allowed, as a consequence of which paras 3-A and 3-B stood

added to the original application and the prayer stood specifically

amended to state that the legal heirship certificate be granted only

to the respondents herein as beneficiaries under the said Will.

7. Faced with this situation, the petitioner moved an

application seeking consequential amendment of the original

objection as the amendment granted in the application completely

prevented the petitioner from raising any claim for issuance of

legal heirship certificate as a co-applicant with the respondents

herein. This application was marked as Exhibit-22 and by order

dated 04/02/2019, the same was rejected by the Court below by a

cryptic order.

8. It is in this backdrop that the petitioner was constrained

to move the application for transposition so that she could be

arrayed as an objector in the proceedings. This application was

marked as Exhibit-23. The petitioner stated that she desired to

object to the application in its amended form and therefore, it was

necessary to transpose her as an objector. This was also in the

backdrop of the application for amendment being rejected on the

ground that the original objection itself had been disposed of and

that in the absence of any objection on record, the amendment

application could not have been granted. The petitioner sought an

opportunity to raise her grievance with regard to the pleadings

introduced by way of amendment by the respondents herein.


9. By the impugned order dated 11/03/2019, the Court

below rejected the said application for transposition, primarily on

the ground that the nature of the proceedings under the aforesaid

Regulation are summary in nature and that in any event the rights

of contesting parties would not reach finality and they would be

subject to proceedings that may be initiated before the competent

Civil Court.

10. The learned counsel appearing for the petitioner

submitted that although the Court below was correct in making

observations regarding the nature of proceedings under the

aforesaid Regulation and that the rights of parties would be

subject to proceedings that may be initiated before the competent

Civil Court, it was submitted that the peculiar facts and

circumstances of the present case required that in the interest of

justice, the petitioner was permitted to be transposed as an

objector to be able to place objections on record, whereupon the

Court below could exercise jurisdiction as per the aforesaid

Regulation. The learned counsel for the petitioner invited attention of

this Court to the Preamble of the aforesaid Regulation and

particularly Clause 4 thereof to support the contentions raised on

behalf of the petitioner.


11. On the other hand, the learned counsel appearing for

the respondents, submitted that since the petitioner had failed to

challenge order dated 18/09/2018, whereby she was added as a

co-applicant with the respondents, it was too late in the day to

claim transposition as an objector. It was submitted that there was

no objection existing on record and that in any case, the final

order that may be passed by the Court below under the aforesaid

Regulation would only indicate as to who would assume

management of the estate belonging to the deceased Mahesh and

that if the petitioner had any grievance with regard to the said

Will Deed or any other aspect of the matter, she could certainly

approach the competent Civil Court. On this basis, it was

submitted that the approach adopted by the Court below was

justified.

12. Heard learned counsel for the rival parties and perused

the material on record. The sequence of events in the present

case does indicate that the petitioner had raised a full-fledged

objection to the application moved by the respondents under the

provisions of the said Regulation. A perusal of the objection raised

on behalf of the petitioner shows that she specifically sought

dismissal of the said application by contending that the

respondents could not have moved such an application behind the

back of the petitioner, who was admittedly the mother of deceased

Mahesh. The contentions raised on behalf of the petitioner in the

objection were accepted by the Court below, which is evident from

order dated 18/09/2018 passed by the Court below. Yet, the Court

below thought it fit to add the petitioner as a co-applicant in the

application moved by the respondents under the aforesaid

Regulation, instead of throwing out the application itself. At this

point in time, the application before the Court under the

provisions of the aforesaid Regulation, as it stood, prayed for grant

of legal heirship certificate in favour of the applicants. This clearly

included the petitioner as a co-applicant, as a consequence of the

order dated 18/09/2018, passed by the Court.

13. The complication arose only when the Court below

allowed the amendment application moved by the respondents by

order dated 20/10/2018. A perusal of the said order shows that it

was cryptic in nature and surprisingly there was an observation

made that no prejudice would be caused to any one if the

application was allowed. The effect of the amendment being

allowed was obviously that the petitioner herein was completely

left out from claiming her right to claim legal heirship certificate

even though she was arrayed as a co-applicant. An exclusive legal

heirship certificate in favour of only the respondents was sought

by way of amendment by placing reliance upon purported Will

Deed dated 15/09/2012, said to have been executed by deceased

Mahesh. It is significant that the respondents did not refer to the

said purported Will Deed when they moved the application on

19/01/2018 under the said Regulation before the Court below.

The application for amendment was filed on 18/04/2019, which

was about two months after the petitioner filed her objection

before the Court below.

14. In this situation, when the petitioner realized that by

way of amendment, she was sought to be kept out from raising a

claim towards legal heirship certificate, an application was moved

for consequential amendment of the objection filed on her behalf.

The said application was rejected only on the ground that since no

objection was on record, such an amendment could not be

permitted. This demonstrates that when the Court below had

itself recognized the right of the petitioner for consideration of her

claim even if along with the respondents as co-applicant, for

issuance of legal heirship certificate, the said opportunity of

consideration of her right stood taken away from her when

the amendment of the original application was permitted by

the subsequent order dated 28/10/2018 passed by the Court

below.

15. In this situation, there was no alternative for the

petitioner, but to file the application for transposition at Exhibit-

23. All that the petitioner desired by moving this application was

to be granted an opportunity to pursue her objection in view of

the subsequent development of the original application being

amended. This shows that the contention raised on behalf of the

respondents cannot be countenanced that since the petitioner did

not challenge the amendment of the original application, she

could not claim her right to be transposed.

16. A perusal of the relevant provisions of the Regulation

would show that the Preamble itself provides that it is in general

desirable that heirs, executors or legal administrators of persons

deceased should, unless their right is disputed, be allowed to

assume the management of the estate of the deceased. The words

“unless their right is disputed” are crucial, particularly in the

peculiar facts and circumstances of the present case.

17. Clause 4 of the Regulation is also significant because it

mandates that the Court shall summarily investigate the grounds

of objection on the one hand and the right of claimants on the

other hand before issuing legal heirship certificate. The said clause

further specifically mandates that if the Court comes to a

conclusion that the question at issue between the parties is of a

complicated or difficult nature, the Court can suspend the

proceedings until the said question is put at rest by way of a

regular suit instituted by one of the parties.

18. In the present case, the facts and circumstances are such

that the respondents are seeking to deprive the petitioner, who is

admittedly the mother of the deceased Mahesh, to even raise a

dispute in terms of the provisions of the aforesaid Regulation. All

that the petitioner desires by way of being transposed is to have

an opportunity to dispute the claim made by the respondents on

the basis of the said purported Will, in view of the amended

application now pending consideration before the Court below.

There cannot be any dispute about the general propositions


discussed by the Court below in the impugned order that the

proceedings under the said Regulation are necessarily summary in

nature and that finality of rights of the disputing parties would be

achieved only after appropriate proceedings are instituted and

culminate before the competent Civil Court. But, in the facts and

circumstances of the present case, the question that was required

to be considered by the Court below was, as to whether the

petitioner could be deprived of her right to raise an objection to

the exclusive right sought to be claimed by the respondents on the

basis of the amended application. This is particularly because, in

the first place, while filing the original application, the

respondents did not join the petitioner as a non-applicant and

even more significantly they did not even mention existence of the

purported Will dated 15/09/2012, said to have been executed by

deceased Mahesh in their favour. Thus, in the facts and

circumstances of the present case, this Court has come to the

conclusion that from the very beginning the respondents have

been making attempts to deprive the petitioner of her basic right

of even disputing the claims made by them insofar as grant of

legal heirship certificate is concerned. Attempts have been made

to nip in the bud, the right of the petitioner to raise her claim.

Whether the Court below finally accepts the claim of the petitioner

or not is a different matter, but she cannot be deprived of her right

to raise objection to the manner in which the respondents have

sought relief from the Court below under the provisions of the

said Regulation.

19. In view of the above, it is found that the impugned order

is wholly unsustainable. Accordingly, the writ petition is allowed.

The impugned order is quashed and set aside. The application

filed by the petitioner at Exhibit-23 is allowed in terms of the

prayer made therein. Consequently, the application pending before

the Court below shall stand amended by transposing the petitioner

as objector. The Court below shall now give an opportunity to the

petitioner to raise an objection having been transposed in terms of

the prayer made by her in the application at Exhibit-23. The

petitioner shall raise such an objection within a period of four

weeks from today. The Court below shall then proceed to decide

the application and objection as expeditiously as possible.

20. Rule is made absolute in the above terms. No costs.


Print Page

No comments:

Post a comment