When applicant should not pay court fees for getting legal heirs certificate?

 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.

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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

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Whether legal representative of applicant of heirship certificate can come on record after his death?

 It may be stated that Bombay Regulations of 1827 is a Regulation to provide for formal recognition of heirs, executors and administrators and for appointment of administrators and manager of the properties by the Courts and for these reasons, the rules are framed under these Regulations. Regulation (2) empowers the Judge to receive proof of right of the applicant and it can satisfyingly grant the Certificate of Heirship.

9. In this case, the appellant, Anita had claimed to be the wife of the deceased and therefore it was a personal right on the basis of which the Heirship Certificate was sought under this Regulation. Thus, it being a personal right, on her death, right to sue does not survive and therefore the question of substitution by the legal representatives cannot be granted. Thus, taking into consideration the facts of the case, in my view, the application preferred by the legal representatives of the appellant for their substitution is not maintainable.

IN THE HIGH COURT OF BOMBAY

Civil Application No. 375 of 2018 in Second Appeal No. 303 of 2016 and Civil Application No. 1941 of 2015

Decided On: 08.03.2019

 Anita Anant Patil Vs.  Malini Anant Patil

Hon'ble Judges/Coram:

Sandeep K. Shinde, J.

Citation: 2019(5) MHLJ 407

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Whether application for legal heir certificate is maintainable if legal heir certificate is already granted to other party?

The facts leading to filing of the present writ petition are that the petitioners had filed an application for grant of legal heirship certificate under Bombay Regulation VIII of 1827 (hereinafter referred to "Regulation"). The said application was granted by the Court of Civil Judge, Junior Division, Nagpur by judgment and order dated 13/06/2017. An application was filed by the respondent on 02/03/2017 under the very same Regulation for grant of legal heirship certificate wherein the petitioners were made parties as non-applicants. 

 A perusal of the above quoted provisions shows that section 387 of the Act of 1925 and clause 7 second of the said Regulation specifically provide for revocation and annulment of a certificate in the nature granted in favour of the petitioners herein. Section 385 of the Act of 1925 specifically provides that a certificate granted in favour of a person shall be invalid if there has been a previous grant of such a certificate and when such a previous grant is in force. Section 387 of the Act of 1925 provides that no decision in Part X of the said Act would prevent the question involved to be raised in a suit or "any other proceedings between the same parties". A proper reading of the aforesaid provision clearly shows that there is a scheme provided for revocation or annulment of certificate, with which any person is aggrieved and that there is also the option of approaching the Civil Court by filing a suit or any other proceedings and that grant of earlier certificate would not act as res judicata between the parties. In the present case, even if the respondent was not aware about grant of heirship certificate in favour of the petitioners, the moment the grant of certificate in favour of the petitioners was brought to her notice, the only course available for her was to have taken appropriate steps either for revocation of the certificate under section 383 of the said Act or for annulment of the said certificate under clause 7 second of the said Regulation or to have filed a suit as contemplated under section 387 of the Act of 1925. To proceed with the present application, filed by the respondent, which is only for grant of legal heirship certificate to her would be an exercise in futility, in view of section 385 of the said Act.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 5447 of 2018

Decided On: 13.02.2019

 Parvatabai  Vs.  Surekha

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2019(5) MHLJ 214

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Whether court can grant heirship certificate in respect of property which is situated beyond territorial jurisdiction of court?

 In the aforesaid judgment and order dated 30-06-2017, this Court has specifically dealt with the question as to whether the Court at Nagpur has territorial jurisdiction at all to consider and entertain the application for grant of legal heir certificate filed by the applicants under the aforesaid Regulation. In that context, this Court has held as follows:-

"There is also much substance in the finding arrived at by the trial Court that as the properties are situated in territorial jurisdiction of the Court in Buldhana District, the Court at Nagpur, cannot be said to be having territorial jurisdiction to entertain this application. The provisions of Section 16 of the Code of Civil Procedure are very material to that effect, which are reproduced herein under:

16. Suits to be instituted where subject-matter situated. Subject to the pecuniary or other limitations prescribed by any law, suits-

(a) for the recovery of immovable property with or without rent or profits.

(b) for the partition of immovable propriety.

(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property.

(d) for the determination any other right to or interest in immovable property

(e) for the compensation of wrong to immovable property, (e) for the recovery of movable property actually under distraint or attachment,

shall be instituted in the Court within the local limits of whose jurisdiction the property is situated;

provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carried on business, on personally works for gain.

Thus, as per this section, even for the determinant of any right or interest to immovable property or for compensation for wrong to immovable property also, the suit has to be instituted in the Court within the local limits of whose jurisdiction the property is situate. Herein in the case the applicants are claiming heirship certificate and thereby calling upon the Court to determine his right or interest in the immovable property, which is situate within the local limit of the Court in Buldhana District and not within the local limit of the Court at Nagpur, where the application is filed. Therefore, on this count also, the learned Trial Court has rightly held that it was not having territorial jurisdiction to entertain the application for grant of heirship certificate."

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Misc. Civil Application (Review) No. 1211 of 2017 in Civil Revision Application No. 91 of 2016 (D)

Decided On: 20.03.2018

 Baban Ramchandra Shukla Vs.  Parag Arvind Shukla and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2018(4) MHLJ 50

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When court should reject application for legal heir certificate as per Bombay Regulation Act?

Though learned counsel for the applicants has tried to rely upon the two pursis filed by non-applicant Nos. 1 and 2 in R.C.S. No. 41/1997, which was renumbered 12/1997, in which they have admitted the execution of the Will, but the fact remains that non-applicants have also filed an application for grant of heirship certificate vide M.J.C. No. 29/1992 in the Court of Civil Judge, Junior Division at Telhara, District Akola and it is pending between the parties. Hence, whether applicants can claim to be the heirs of deceased Nanibai in the strict sense of the terms to inherit her property totally or to manage her property is itself in question. The very fact that such disputes are pending in the Court is sufficient to indicate that the issues involved in the present case are complicated and of difficult nature. They pertain to the interpretation of the provisions of Hindu Succession Act and deciding validity of the Will alleged to be executed by Nanibai. The second clause of Rule 4 specifically provides that if from the evidence adduced, it appears that the question at issue between the parties is of a complicated or difficult nature, then Judge may suspend proceedings in the application for a certificate until the question has been tried by a regular suit instituted by one of the parties. Here the provisions of the Hindu Succession Act, coupled with the legality and validity of the Will alleged to be executed by Nanibai being in question, the proceeding for heirship certificate, as laid down in clause (2) of Rule 4 need not be decided. As these proceeding are to be of summary in nature and in such summary proceeding the Court cannot be expected to deal with these complicated factual and legal issues raised by the parties. The Court can in such situation, leave the parties to agitate their rights before the appropriate forum, especially when in this case the litigation is pending between the parties, the learned Trial Court was also justified in holding that, in order to consider the applicants as legal heirs of the deceased Nanibai, there must be some prima facie evidence like entries in the record of rights, so that for management of the property such heirship certificate can be issued in the name of applicants. However, no document was produced by applicants on record for the Trial Court to prima facie come to the conclusion that applicants are in the management of the property and hence are entitled for management of property.

20. Rule 3 of Bombay Regulations also provide that the Court can issue such heirship certificate upon the proof as may be offered of the right of the person making the claim and only the Court, if satisfied, shall grant certificate declaring him to be the recognized heir. Herein the case from the evidence, which was adduced by the applicants and having regard to the disputes between the parties in the Civil Court, no fault can be found if the Trial Court was not satisfied of the proof offered by the applicants of their right to claim, in the property left behind by Nanibai.

21. The rights of beneficiary under the Will are required to be crystallized in the civil suits, which are pending between the parties. The applicants, merely on the basis of such will-deed cannot exclude the rights of non-applicants who are also the legal heirs of Nanibai and Eknath. Hence, looked at it any angle, it cannot be said that the Trial Court has committed any error, much less any illegality, impropriety or perversity, in refusing the grant of the heirship certificate to the applicants. Whether the applicants are really legal heirs, to the exclusion of non-applicants, cannot be decided in summary proceeding. The mandate of the Bombay Regulations also is to that effect and is found reflected in its rules, especially Rule 4 and Rule 8. Therefore, the impugned order passed by the Trial Court being just, legal and correct does not call for any interference.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Revision Application No. 91 of 2016

Decided On: 30.06.2017

 Baban Ramchandra Shukla and Ors.Vs. Parag Arvind Shukla and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2018(1) MHLJ 411

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Whether court can revoke legal heir certificate granted under Bombay regulation Act?

 A legal heirship certificate was issued in the present
case under the provisions of Bombay Regulation VIII of 1827. The
regulation (Section 2 thereof) inter-alia provides that if any heir is
desirous of having his right formally recognized by the Court, the
judge, on an application of such heir, shall issue a proclamation in
the form contained in Appendix – A to the Regulation, inviting all
persons, who dispute the right of the applicant, to appear in the
Court and submit their objections, and if, no sufficient objection is
offered to the application, the judge shall proceed to receive
proof of the right of the applicant and upon being satisfied, grant
a certificate of heirship to the applicant. It is also to be noted
that by virtue of Section 390 of the Indian Succession Act, 1925,
various provisions contained in Part–X of that Act concerning
succession certificates including Section 383 of that Act are made
applicable, so far as may be, to the heirship certificates granted
under Bombay Regulation VIII of 1827. Section 383 of the
Succession Act provides for revocation of any succession
certificate granted under Part–X , inter-alia in a case where (i) the
proceedings to obtain such certificate were defective in
substance [clause (a)] or (ii) the certificate was obtained
fraudulently by making a false suggestion or by concealment from

the Court of something material to the case [clause (b)].
The argument of learned counsel for the petitioners in the
present case is, firstly, that since issuance of proclamation is an
essential condition for accepting the claim of heirship and issue a
heirship certificate and that condition was not followed in the
present case, the proceedings to obtain the heirship certificate
can be said to be defective in substance. It is secondly submitted
that inasmuch as there is a fraudulent suggestion on the part of
the respondents herein whilst obtaining the heirship certificate
that they were the only legal heirs and next of kin to the
deceased, as also an active concealment of the fact of the second
marriage of the deceased with petitioner no.1 and birth of two
daughters (petitioner nos.2 and 3) from out of that wedlock, the
heirship certificate is liable to be revoked.
8 It is pertinent to note that as far as clause (a) of
Section 383 is concerned, a case must be made out that the
proceedings were defective in substance. The petitioners claim
that since the proclamation was mandatory under the provisions
of Section 2 of Bombay Regulation VIII of 1827, issuance of
heirship certificate in the present case was defective for want of
such proclamation. It is pertinent to note in this behalf that the

proclamation was dispensed with by an express order of the
Court. If the misc. petition for heirship certificate was pressed
before the Court, without issuing the proclamation as per the
dispensation granted by the Court, the proceedings cannot be
said to be defective in substance. It is another matter if without
seeking any dispensation the heirship certificate was applied for
without such proclamation. In such case, the proceedings would
be defective in substance. So long as the order of the Court
providing for dispensation of the proclamation stands and is not
set aside, it is not for any party to claim that proceedings to
obtain heirship certificate without a proclamation suffer from any
defect in substance. There is, accordingly, no merit in the first
objection raised by the petitioner.
9 Clause (b) of Section 383 deals with a case where the
heirship certificate is obtained fraudulently by making of a false
suggestion or by concealment from the Court of something
material to the case. 'Fraud' itself implies suggestion of a fact by
one who does not believe it to be true or an active concealment of
a fact by one having knowledge or belief of the fact. In either
case, therefore, for seeking revocation of a certificate granted
under Part-X of the Indian Succession Act, or a heirship

certificate granted under Section 2 of Bombay Regulation VIII of
1827, the applicant for revocation must make out three
ingredients; firstly, it needs to be shown that there is a false
suggestion or concealment of a material particular in the
application for heirship certificate; secondly, such suggestion or
concealment must be shown to have been made knowingly, that is
to say, by someone who does not believe the suggestion to be true
or who has the knowledge or belief of the fact concealed; thirdly,
there should be no other consideration affecting the
maintainability of the application for revocation, for example, bar
of limitation or equitable considerations affecting the applicant's
right to seek revocation.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
MISC. PETITION NO.32 OF 2017
WITH
NOTICE OF MOTION NO.57 OF 2017
Kusum Chandrakant Shankardas & Ors. 
V/s.
Rajeshri Chandrakant Shankardas & Ors.

CORAM : S.C. GUPTE, J.
DATED : NOVEMBER 1, 2017.

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Whether death certificate of predeceased relative is necessary for getting legal heir certificate under bombay regulation Act?

This clearly establishes that a certificate issued under Bombay Regulation VIII of 1827 confers no right to any property. It only indicates a person who (for the time being ) is in the legal management of it. It can always be annulled on proof that another person has a preferable right.

9. I would imagine that in view of these provisions, it is wholly unnecessary for the Registry to display such extraordinary caution or timidity and to demand ancestral death certificates. A statement made by the Petitioner is that the deceased's mother predeceased the deceased is surely sufficient, for it is made on oath.

10. I am also unable to understand why the department insists on death certificate of only one of the parents of the deceased. If this is a requirement of law, then surely the department must ask for the death certificates of both parents of the deceased; and by logical extension, the death certificates of their parents on each side, and so on to the end of the chapter, going back countless generations.

11. If this is the kind of procedure is to be followed for issuance of mere certificate that confers no right to the property, does not finally determine nor injure the right of any person and the issue of which is only to make it safer for a third party to deal with the Applicant, then no Heirship Certificate will ever be granted by this Court, for every Applicant will probably spent his entire lifetime gathering death certificates going back decades or even centuries.

Bombay High Court

Vinita Ankit Verma vs Ankit Bhagwaticharan Verma ... on 16 March, 2016

Bench: G.S. Patel

Citation: 2016(5) ALLMR 412 Bom

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Whether court can grant legal heirs certificate even though parties have not proved their case?

It is true that, when application is made for heir certificate, in the first instance the concerned Court has to exercise powers in a summary manner and in a case where there no serious dispute, such procedure adopted by the Court and issuance of certificate may be acceptable. However, in the facts and circumstances of this case, when both the parties are seriously canvassing their claim, in that case, unless the competent civil Court records the findings after appreciation of evidence and after giving opportunity to the parties to prove the documents, it is not possible to accept the claim of either of the parties. In that view of the matter, in the facts of this case it will have to be held that, the appellate Court did reach to the correct conclusion. It is also not out of place to mention, that merely placing on record the marriage invitation card or certificate issued by Grampanchayat or any other document without proving the said, same is is not sufficient to prove the claim. It is necessary that such documents are required to be proved. In the facts of this case, Shobhabai and Mandanbai have placed number of documents on record and without proving such documents, it is not possible to record definite conclusion by adopting summary procedure. In that view of the matter, the view taken by the appellate Court needs no interference in revisional jurisdiction.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Revision Application No. 134 of 2011

Decided On: 04.10.2011

Appellants: Shobhabai, W/o. Prakash Telure, Siddharth, S/o. Prakash Telure and Aamarpali, D/o. Prakash Telure

Vs.

Respondent: The State of Maharashtra, through Collector and Ors.

Hon'ble Judges/Coram:

S.S. Shinde, J.

Citation: 2012(2)ALLMR765, 2011(6)BomCR293, 2011(113)BOMLR3566

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Who is person "aggrieved person" in proceeding under bombay regulation Act?

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.

Bombay High Court

Group Grampanchayat vs Sunanda Shamrao Bandishti & Ors on 14 July, 2010

Bench: D.G. Karnik

WRIT PETITION NO.1995 of 2010

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Whether court can decide legality of marriage between applicant and deceased in petition under bombay regulation Act?

Bombay Regulation Act -heirship certificate-application for grant of-It requires only summary investigation to see if applicant has a perferable right to heirship certificate-Question whether marriage between applicant and deceased could be said to be legal can be settled only by way of suit and not in proceeding which is summary in nature.

Bombay High Court

Ankush vs The State Of Maharashtra on 29 January, 2014

Bench: A.I.S. Cheema
Citation;2015(7) ALLMR 162

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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

Shri. Ganpati Vinayak Achwal

(Sole petitioner in original
proceedings)

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

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