In so far as Article 12 of Schedule I of the Bombay
Court Fees Act, which has been referred by the learned Judge in
the order, is concerned, it could be seen that the fees prescribed
for certificate under the said regulation are same as the fees
leviable in case of a probate, on the amount or value of the
property in respect of which the certificate is asked for. Article 12
prescribes the percentage of fees to be payable in the matter of a
probate or a will or a letter of administration with or without seal,
depending upon the value of the property.
5] However, perusal of the present application would
reveal that the applicants are not seeking a heirship certificate
under the said regulation with respect to any property. It would be
seen that the fees would be payable only if a heirship certificate is
sought to be obtained, is in respect of same property.
I do not understand the propriety of the learned Judge
in making an Enquiry from the sources not disclosed in the order,
regarding the list of persons, who are entitled to get compensation
in village Nandgaon. The only requirement under the regulation
prior to issuing a proclamation is to invite and to consider the
objections, if any, received within 30 days from the date of the
proclamation. Had anyone objected after the proclamation so
issued, in that event only, I find that any enquiry in the matter
would have been necessary. If the application filed by the
petitioners was uncontested and if the petitioners had produced
the documents in support of their claim that they; were heirs of
deceased Digambar, I do not understand the propriety of holding
any other enquiry.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
WRIT PETITION NO. 7309 OF 2009
Shri Ashok Diga Deng Vs The State of Maharashtra.
CORAM : B.R. GAVAI J.
DATE : 21ST NOVEMBER, 2009.
1] Rule. Rule made returnable forthwith. Heard by
consent.
By way of present petition, the petitioner challenges
the order dated 23rd October, 2009 passed by the learned Civil
Judge (Junior Division) Tuljapur, thereby directing the petitioners to
pay court fee as per Schedule I, Article 12, of the Bombay Court
Fees Act, 1959. The petitioners claim to be the legal heirs of one
Digambar s/o. Sadashiv Deng, who died on 24th September, 1999.
The petitioners have applied for grant of heirship certificate as
legal heirs of deceased Digambar. The petitioners are the sons,
wife, daughter in law of deceased Digambar.
2] It is contended I the application that the petitioners
required the heirship certificate for submitting it in various
Government Departments. On the said application, the order
impugned herein is passed. In the said order, the learned Judge
has observed that he has made an enquiry and in his enquiry, he
has come to know that the present petitioners are entitled to more
than Rs. 2 Lakhs each and, therefore, they are required to pay the
court fees , as per Schedule I of Article 12 of the Bombay Court
Fees Act.
3] Perusal of the Bombay Regulation VIII/1827 would
reveal that under Rule 1, a legal heir of a person deceased is
competent to represent him without a recognition from the court.
Rule 2 of the said regulation would reveal that, however, if a heir,
executor or administrator is desirous of having his right formally
recognized by the court, the Judge on an application, shall issue a
proclamation inviting all persons who dispute the right of the
applicant to appear in the court within 1 month from the date of the
proclamation and submit their objection . The said provision
require that after considering the objections, if any, the Judge shall
grant a certificate of heirship, executorship or administration.
However, perusal of the 2nd part of the Rule 7, would reveal that
the certificate does not confer any right to the property but only
indicates the person, who, for the time being is in the legal
management thereof. It further provides that granting such
certificate does not finally determine nor injure the rights of any
person.
4] In so far as Article 12 of Schedule I of the Bombay
Court Fees Act, which has been referred by the learned Judge in
the order, is concerned, it could be seen that the fees prescribed
for certificate under the said regulation are same as the fees
leviable in case of a probate, on the amount or value of the
property in respect of which the certificate is asked for. Article 12
prescribes the percentage of fees to be payable in the matter of a
probate or a will or a letter of administration with or without seal,
depending upon the value of the property.
5] However, perusal of the present application would
reveal that the applicants are not seeking a heirship certificate
under the said regulation with respect to any property. It would be
seen that the fees would be payable only if a heirship certificate is
sought to be obtained, is in respect of same property.
. I do not understand the propriety of the learned Judge
in making an Enquiry from the sources not disclosed in the order,
regarding the list of persons, who are entitled to get compensation
in village Nandgaon. The only requirement under the regulation
prior to issuing a proclamation is to invite and to consider the
objections, if any, received within 30 days from the date of the
proclamation. Had anyone objected after the proclamation so
issued, in that event only, I find that any enquiry in the matter
would have been necessary. If the application filed by the
petitioners was uncontested and if the petitioners had produced
the documents in support of their claim that they; were heirs of
deceased Digambar, I do not understand the propriety of holding
any other enquiry.
6] As already discussed hereinabove, the second part of
Rule 7, of the said regulations clearly provides that merely
because such a certificate is issued, the person in whose favour
such a certificate is granted does not get any right or title to any
property. In that view of the matter, I find that the impugned order
is not sustainable in law.
7] Rule is , therefore, made absolute in terms of prayer
clause (B). C.C.expedited.
[B.R. GAVAI, J.]
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